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THE 



POLITICAL GRAMMAR 



UNITED STATES; 



OB, 



A COMPLETE VIEW OF THE THEORY AND PRACTICE OF THE 

"GENERAL AND STATE GOVERNMENTS, WITH THE 

RELATIONS BETWEEN THEM. 



DEDICATED AND ADAPTED 

TO THE 

YOUNG MEN OF THE UNITED STATES. 



BY EDWARD D.* MANSFIELD, 

COUNSELLOR AT LAW. j 



NEW-YORK: 
PUBLISHED BY HARPER & BROTHERS, 

NO. 82 CLIFF-STREET, 

AND SOLD BY THE PRINCIPAL BOOKSELLERS THROUGHOUT THE 

UNITED STATES. 

183 4. 






[Entered, according to Act of Congress, in the year 1834, by Har- 
per & Brothers, in the Office of the Clerk of the Southern Dis- 
trict of New- York.] 



PREFACE. 



The following work was commenced in the 
winter of 1832-3, before the Exposition of Mr. 
Bayard, the Outlines of President Duer, or the ad- 
mirable Commentaries of Justice Story, had yet 
issued from the press. Why the author was not 
deterred from the continuance of his undertaking, 
by the appearance of such distinguished instructers 
in the same arduous field, will sufficiently appear 
from the following statement of his object-and his 
plan. 

It was early and strongly impressed upon the 
mind of the writer,, that political instruction was 
necessary to political liberty ; that the establish- 
ment of constitutional rights pre-supposed in the 
people a knowledge of the elementary terms, defi- 
nitions, and principles, expressed in written consti- 
tutions ; and that without such knowledge, what- 
ever other information or intelligence might be cul- 
tivated, our happy republic would pursue the same 
melancholy career which had led to the ruin of 
the free nations of antiquity. To facilitate such 



Y PREFACE. 

knowledge and instruction was the object of the 
writer in the compilation of the following work. 
It is intended as a text-book for young men, either 
in public education or private reading. The works 
which have preceded it have chiefly been confined 
to one subject, — Constitutional Jurisprudence. The 
plan of this is much more extensive, though in ex- 
ecution it has not occupied more space. The 
object of the author was to give, not merely a 
view of the Constitution, but a brief and correct 
delineation of the theory and operation of the 
government. Accordingly, he has not only given a 
condensed sketch of the Origin of the Constitution, 
— Political Jurisprudence, and the Ratifications of 
the States, — but Has added a brief view of the 
State Constitutions, and of the Relations between 
the States and the Nation, and the practical opera- 
tion of the General and State Governments. The 
latter part of this work, — being nearly half, — is, 
therefore, almost wholly original ; and the rest, it 
is believed, has lost nothing by being, in a great 
measure, free from comments,, while it is accompa- 
nied by references to the highest authorities. 

In preparing this work, the author has consulted 
many writers on national and political law, — to 
some of whom, as will be seen by the references, 
he has been under special obligation. On Consti- 
tutional Jurisprudence, he has followed chiefly the 
outlines of Chancellor Kent in his Lectures, Justice 
Story in his Commentaries, and the decisions of 
that great and enlightened expositor of the Consti- 



PREFACE. 



tution, — the Supreme Court. In the general prin- 
ciples and relations of the government, he has fol- 
lowed substantially the opinions of President Mad- 
ison and Mr. Webster, the founder and defender, 
as he believes, of the true system of American 
politics. 

In conclusion, the author believes that no princi- 
ple will be found here which has not the superior 
weight of authority in its favour, — none which in 
any way impairs the principles and durability of 
republican government, — none which was not also 
the faith of that illustrious band of patriots, who 
formed and left to other ages that greatest monu- 
ment of human wisdom, — the American * Con- 
stitution. 

Cincinnati, July, 1834. 



TABLE OF CONTENTS. 



BOOK I. 

INTRODUCTION. 

Definitions. 

CHAPTER I. 

SECT, 

Origin of the Constitution 1-28 

CHAPTER II. 

Constitution of the United States, with the 
Decisions, Authoritative, of every Branch 
of the Government under it 28-435 

CHAPTER HI. 

Ratifications of the Constitution . . . . . 435-463 

CHAPTER IV. 

Synopsis of the Constitutions of the States . 463-507 

CHAPTER V. 

Relations between the General and State Gov- 
ernments, stated in the form of Proposi- 
tions, and regularly demonstrated . . . 507-^38 



ViU TABLE OF CONTENTS. 



BOOK II. 

OPERATION OF THE NATIONAL AND STATE GOT- 

ERNMENTS. 

CHAPTER I. 

SECT., 

Practical Operation of the Constitution of the 
United States. 

1. Office and duties of the Executive. 

2. Functions of, and mode of proceed- 

ing in, the Legislature. 

3. Functions and Jurisdiction of the 

Supreme Court 538-704 

CHAPTER II. 

Practical Operation of the State Governments 704-722 



INTRODUCTION. 



POLITICAL DEFINITIONS. 

1. Sovereignty, — as the highest power! 1 

Thus, for a state, or nation, to be sovereign, it must 
govern itself, without any dependence upon another power* 2 
It must have no superiors. 2 But when a community, 
city, or state makes part of another community or state, 
and is represented with foreign powers by that com- 
munity or state of which it is a part, then it is not 
sovereign* 

2. Government, — is the whole body of constituted 
authority. 5 Thus, from the very origin of society, one 
portion of the people have exercised authority over the 
rest. The authority thus exercised is called the gov- 
ernment, and it derives its just powers from the consent 
of the governed. 6 

3. Law, — is a rule of action. 7 In this general 
sense, it signifies the rules of all action, and constitute* 
alike the rules by which the heavenly bodies move, 
nations are governed, and the plants grow. Law, in a 
political sense, however, signifies a rule of human action* 
In a particular state, " it is a rule prescribed by the 

"Johnson. 2 Vattel's Laws of Nations, p» 16; Martin's 
Laws of Nations, p. 23. 3 Rutherforth's Institutes, p. 282. 
4 Martin, p. 25. 5 Crabbe. 6 Declaration of Independence. 
7 1 Blacks. Commentaries, p. 38 ; — Johnson. 
B 



14 INTRODUCTION. 

supreme power in the state, commanding what is right, 
and forbidding what is wrong." 

4. Constitution, — is the constituted form of govern- 
ment. 1 It is the fundamental law ; the regulation which 
determines the manner in which the authority vested in 
government is tp be executed. 2 It is delineated by the 
hand of the people. 3 

5. A Despotism, — is that form of government 4 "in 
which a single individual, without any law, governs 
according to his own will and caprice." An example of 
this kind of government may be found in Turkey, where 
the sultan exercises all the powers of sovereignty, with 
respect to the general administration of public affairs ; 
but, even there, he is limited by certain customs and 
rules, as it respects private justice. 

6. A Monarchy, — is that form of government in 
which a single individual governs, but according to 
established laws. 5 The governments of Austria, Prussia, 
France, and England are examples of this form of 
government. The limitations placed upon the monarch 
are, however, very different in degree : thus, the power 
of the Prussian monarch is very great, while that of 
the king of England is so small as scarcely to be felt. 
The latter acts through his ministers, who are held 
responsible to the representatives of the people, and can 
maintain their power only so long as they can satisfy 
public opinion. 

7. A Republic,— is that form of government in 
which the whole people, or only a part of the people, hold 
sovereign power. 6 The people of Athens were formerly 
an example of the first kind of republic, and governed 
themselves by primary assemblies of the people, a mode 
which could only be adopted where the people were 
chiefly citizens, and inhabitants of one capital city. In 

1 Crabbe, Johnson. 2 Vattel, p. 26. 27. 3 Supreme Court ; 
2 Dallas, p. 304. 4 Montesquieu, book 2d, chap. I. 5 Mon- 
tesquieu, Spirit of Laws, book 2d, chap. I. 6 Idem. 



INTRODUCTION. 15 

modern times the United States are an example of the 
same kind of republic, with this difference, that the peo- 
ple do not govern themselves by their assemblies, but by 
delegates, or through the principle of representation. 
An example of the second kind of republics may be found 
in Venice, Genoa, and the Dutch Slates, 1 in all of which 
a part, of the people, either absolutely or limitedly, ex- 
ercised the authority. The difference between these 
kinds of republics will be understood from the following 
definitions. 

8. A Dkmocracy, — is when the sovereign power is in 
the hands of the whole people. 2 The term Democracy 
is derived directly from the Greek word Demos, signi- 
fying the people. 

9. An Aristocracy, — is when the sovereign power is 
in the hands only of a part of the people? This word is 
likewise of Greek derivation. It is compounded of the 
adjective Aristos, signifying best or wisest, and Kratos, 
signifying power or strength ; the whole word signifies 
that form of government in which a few of the wisest 
and best govern. Both Democracies and Aristocracies 
are Republics. 

10. A Party, — is any number of persons confeder- 
ated, by a similarity of objects and opinions in oppo- 
sition to others. 4 An illustration of this may be found 
anywhere. In England, the whigs and tories are two 
great parties, which have long divided the nation. In 
France, during the revolution, the jacobins and royalists 
were violently opposed. On the continent of Europe 
generally, there are the parties of the liberals and abso- 
lutists. In the United States, the federal and democratic 
parties divided the country till the termination of the last 
war. 

1 1. A Faction, — is any number of persons, whether 
majority or minority, confederated by some common 

1 Martin, p. 39. ^Spirit of Laws, book 2d, chap. II. 

3 Idem. 4 Locke. 



16 INTRODUCTION. 

motive, in opposition to the rights of other persons, or 
to the interests of community. 1 The difference between 
party and faction then is, that the former is a difference 
of principle, and is founded on a general or public object ; 
the latter may have any motive, however personal or 
selfish, and be directed towards any end, however little 
connected with the public welfare. Thus, two divisions 
of the people differing as to how the government shall 
be administered, are parties ; but a section whose object 
is to keep one portion of the people from the enjoyment 
of power, or to aggrandize an individual, or to divide 
among themselves all the offices of state, is a faction. 

12. Legislature, — is the law-making poiver. 2 Thus, 
in a Republic, it is that branch of the government in 
which the people have vested the power to make laws. 

13. Congress, — is a meeting for the settlement of na- 
tional affairs, whether relating to one or more nations. 3 
In the United States, the national legislature is called the 
Congress ; in Europe, a conference of different powers 
by their ministers, is called a Congress ; as the meeting 
of ambassadors at Laybach was called the Congress 
of Laybach. 

14. Legislative, — that which relates to law-mak- 
ing* 

15. Executive, — that which relates to the execution 
of the laws. 5 Thus, the chief officer of the govern- 
ment, whether he be called King, President, or Gov- 
ernor, is denominated the Executive., — for on him, in 
most cases, the constitution devolves the duty of exe- 
cuting the laws. 

16. Judicial, 6 — that which relates to the adminis- 
tration of justice. Thus, judicial duties are those which 
devolve upon the judges, who have to decide upon what 
is law, and to adjudicate between private rights. 

1 Federalist. 2 Johnson. 3 Idem.. * Idem, 

6 Idem. 6 Idem. 



INTRODUCTION. 17 

17. Statute Law, — is the express written will of 
the Legislature, rendered authentic by prescribed 
forms. 1 Thus, the statutes of Ohio are the laws en- 
acted by the Legislature of Ohio. It follows, from this 
definition in connexion with those of Constitution and 
Legislature, that statutes can be binding only when, 1st, 
they are executed according to the prescribed forms ; 
and, Idly, when they are consistent vnth the constitution ; 
for, the constitution being the fundamental law, created 
by the people themselves, all other laws are inferior 
to it, 

18. Common Law, — is that body of principles, 
usages, and rules of action which do not rest for their 
authority upon the positive will of the legislature. 2 In 
other words, it consists of those customs and rules to 
which time and usage have given the sanction of law. 
Of such, it is plain, must be the great body of the laws 
of every people ; for the rules of business and the 
usages of society are so variable and complicated, as to 
be incapable of being made permanently the subject of 
statute law. The will of the legislature being, how- 
ever, under the limitation of the constitution, that of the 
people, statute law is superior in force to common law 5 
and wherever they are inconsistent with each other, the 
latter is abrogated by the former. 3 

19. A Corporation, — is defined to be a body politic, 
having a common seal. 4 " — It is an artificial, or political 
person, maintaining a perpetual succession, 5 by means of 
several individuals, united in one body through a com- 
mon seal. They have a legal immortality, except so 
far as they are limited by the law of their creation. 
These were originally created for purposes of charity, 
trade, and education; but are now used for all purposes 



1 Kent's Comm. 1 vol. p. 319. 2 Idem, 1 vol. 439. 

3 Black. Comm, 1 vol. p. 89. * Johnson* 5 Black. Coram* 
1 vol. p. 467. 

B2 



18 INTRODUCTION. 

in which it is wished to transmit a common property* 
Thus, all banks, turnpike companies, colleges, and char- 
tered societies are examples of corporations. 

20. Charter, — is the act creating the corporation, 
or separate government, or the privileges bestowed 
upon a community, or a society of individuals. 1 It is 
derived from the Latin term charta, signifying a writ- 
ing. 2 

21. A CouRT,-^is defined to be a place wherein 
justice is judicially administered.'* In our country, and 
in the New-England States especially, Court has 
sometimes had another signification, that of the legisla- 
tive body ; thus, the General Court of Massachusetts is 
the legislature. The former is, however, the correct 
meaning. 

22. Municipal, — relating to a corporation. Munici- 
pal xaws are civil or internal, in opposition to national or 
external laws. 4 Thus, laws relative to the descent of 
property are municipal laws ; but laws relative to war, 
the army, and navy are external, and national. 

23. Jurisdiction, — is extent of legal power. 5 Thus, 
a court has jurisdiction over certain things, as all sums 
over a certain amount, when its legal authority extends 
over them. A government has jurisdiction over a cer- 
tain territory, when its power extends over it. 

24. Impeachment, — is a public accusation, by a body 
authorized to make it. 6 Such were the charges pre- 
ferred by the British House of Commons against War- 
ren Hastings, Governor-general of India; and in this 
country by the House of Representatives, against Sam- 
uel Chase, one of the Judges of the Supreme Court. 

25. Verdict, — is the true saying of a jury. 7 It is 
the answer which a, jury make to the court and parties,. 



1 Black. Comm. 1 vol. 109. 2 Sullivan Polit. Class-Book, 49. 
8 Black. Comm. 3 vol. p. 23. * Story's Comm. 159. 6 Johnson. 
6 Johnson ; Crabbe. 7 3 Black. Comm. 377. 



INTRODUCTION. 19 

when the plaintiff and defendant have left the cause to 
their decision. 

26. Diplomacy, — signifies the intercourse which is 
carried on between different nations by means of their 
ministers, or agents. 1 

27. Revolution, — is a radical change in the gov- 
ernment of the country. It may be made in various 
ways — by force and blood, as in France, 1792 ; by the 
expulsion of one family and settlement of another, as 
in England, 1688, and, in France, 1830; or by a sep- 
aration of one part of a country from another, as in the 
United States, in 1776. Thus, also, all acts in opposi- 
tion to the laws, and which are not legitimate under the 
constitution, are revolutionary, because their tendency is 
the overthrow of the laws. 

28. Ex post facto, — An ex post facto law is a 
retrospective criminal laiv. A retrospective law is one 
which acts upon things already done, and not merely 
upon those which are to be done. An ex post facto law 
makes something criminal which was not criminal when 
done. Thus, if the legislature should pass an act, de- 
claring that all persons who had not attended church last 
year should be imprisoned, that law would be unconsti- 
tutional, because ex post facto. But if the legislature 
should pass an act that those who had attended militia 
duty last year should be excused from paying taxes, and 
those who had not should not be so excused, such a law 
would be retrospective, but not ex post facto, because not 
criminal. An ex post facto law makes past acts crimi- 
nal, which were not so before. 2 

29. A Bill of Attainder, — is a special act of the 
legislature, inflicting capital punishments upon persons 
supposed to be guilty of high offences, such as treason 
and felony, without any conviction in the ordinary 



1 Sullivan's Polit. Class-Book, 225. 2 3 Story's Comm, 

212, 213. 



20 INTRODUCTION. 

course of judicial proceedings. 1 If it inflict a milder 
punishment, it is called a bill of pains and penalties. 

30. The Ballot, — signifies the ball, 2 or ticket, by 
which persons vote at an election. To ballot signifies 
voting by ballot, i. e. by ball, or ticket. Formerly 
voting was altogether viva voce, that is, by the voice, — 
the elector designating by name the person voted for ; 
now, elections are generally made by ballot. The 
name of the person voted for is written on a ticket, and 
deposited in a box. 

31. Quorum, — is such a number of anybody as is 
necessary to do business. 3 Thus, when it is said there 
shall be eleven directors of any institution, and seven 
shall constitute a quorum, seven is the number neces- 
sary to do business ; and unless the contrary is ex- 
pressed, a majority of a quorum only is necessary to a 
decision. Hence it often happens, that less than a ma- 
jority of the whole decide important questions. 

32. Indictment. — An indictment is a ivritten accu- 
sation of one or more persons, of a crime or misde- 
meanor, preferred to, and presented upon oath by, a 
grand jury. 4 

33. Taxes. — All contributions imposed by the gov- 
ernment upon individuals, for the service of the state, 
are called taxes, by whatever name known. 5 Thus, the 
tithes imposed upon the people of England for the sup- 
port of church government is a tax : so also imposts, 
duties, excises, <fcc. are taxes. 

^3 Story's Comra. p. 211. 2 Johnson. 3 Idem.. 

* 4 Black. Coram. 302. 5 2 Story's Coram. 419. 



(21) 



CHAPTER I. 

ORIGIN OF THE CONSTITUTION OF THE UNITED STATES. 

§ 1. The continent of North America was chiefly 
settled by emigrants from Great Britain. The jurisdic- 
tion over the new region, as well as the title to its lands, 
was claimed by the mother country, under the colour of 
discovery and conquest. Hence, to acquire the right of 
property, as well as to sustain themselves against oppo- 
sition, the authority of Great Britain became necessary 
to the early colonists. This was given in the form of 
grants and charters, to companies and large proprietors. 
Such was the grant of the territory of Massachusetts 
to the Plymouth Company, and of Maryland to Lord 
Baltimore. 1 

§ 2. There were originally £/iree difTerent/orms of gov- 
ernment in the colonies, viz. — The Charter, the Pro- 
prietary, and Royal Governments. The Charter Gov- 
ernments were confined to New-England ; the middle 
and southern colonies were divided between the Pro- 
prietary and Royal Governments. 

§ 3. The Charter Governments were 2 composed of 
a Governor, Deputy-governor, and Assistants, elected by 
the people ; these, with the freemen, i. e. citizens, of the 
colony, were to compose the " General Courts," which 
were authorized to appoint such officers, and make such 
laws and ordinances for the welfare of the colony as to 
them might seem meet. These first forms of govern- 
ment in New-England contained the same principles 
as, and were doubtless the origin of, our republican 
system. 

1 I Pitkin's Civil History, p. 31. 2 Idem. p. 36. 



22 ORIGIN OF THE 

§ 4. The Proprietary 1 governments were those of 
Maryland, Pennsylvania, the Carolinas, and Jersey. 
Part of these soon became royal governments. In the 
proprietary governments, the power of appointing offi- 
cers and making laws rested in the proprietors, by the 
advice and assent, generally, of the freemen. In some 
of them, as in the Carolinas, singular irregularities 
were found. In all, great confusion took place. 

§ 5. In the Royal 2 governments, which were New- 
York, Virginia, Georgia, and Delaware, the governor 
and council were appointed by the croivn ; and the peo- 
ple elected representatives to the colonial legislature. 
The governor had a negative in both houses of the 
legislature ; and most of the officers were appointed by 
the king. 

§ 6. These different governments, operating also 
upon a people of different habits and manners, as the 
Puritans of New-England, the Cavaliers of Virginia, 
and the Quakers of Pennsylvania, produced many di- 
versities of legislation and political character. Not- 
withstanding these, however, the necessities of a com- 
mon danger from hostile tribes of Indians, and of a 
common interest from similarity of circumstances, soon 
induced a union, or confederacy of the colonies. Those 
of Massachusetts, Plymouth, Connecticut, and New- 
Haven, as early as 1643, formed a league, offensive and 
defensive, which they declared should be perpetual, and 
distinguished by the name of the United Colonies of 
New-England. This confederacy subsisted for forty 
years, under a regular form of government, in which 
the principle of a delegated congress was the prominent 
feature. 

§ 7. A Congress of Commissioners, representing 
N ew-Hampsire, Massachusetts, Rhode Island, Con- 

1 Pitkin's Civil History, p. 55. 2 Idem. p. 71. 



CONSTITUTION OF THE UNITED STATES. 23 

necticut, New- York, Pennsylvania, and Maryland, was 
held at Albany in 1754. This convention 1 unanimously 
resolved, that a union of the colonies was absolutely 
necessary for their preservation. They proposed a 
general plan of federal government, which, however* 
was ncut adopted. 

$ 8. In October, 1768, a congress 2 of delegates from 
nine states assembled at New-York, and digested a bill 
of rights on the subject of taxation. 

§9. In September, 1774, an association of twelve 
states was formed, and delegates authorized to meet and 
consult for the common welfare. 

§ 10. In May, 1775, the first congress 3 of the thir- 
teen states assembled at Philadelphia ; and in July, 
1776, issued the Declaration of Independence. 

§11. In November, 1777, Congress agreed upon the 
celebrated Articles of Confederation, under which the 
United States successfully terminated the Revolution. 
This was the first formation of a general government of 
all the states, and continued till the adoption of the Con- 
stitution in 1788. This, however, had inherent defects, 
which forced the states to the adoption of the present 
system. During the Revolution, the pressure of an in- 
stant and common danger kept' the states in a close union, 
and incited them to make all possible efforts in the com- 
mon defence. When that was over, however, mutual 
jealousies and separate interests, weakening the common 
bonds, soon proved the utter insufficiency of a mere 
confederacy for the purposes of national government. 
Then it was that the ablest heads and the purest 
hearts in the nation exercised their faculties in devising 
a new and better form of government. General Wash- 
ington, in June, 1783, addressed a letter 4 to the gover- 
nors of the several states, in which he says, " There are 

1 Kent's Comm. p. 191, 192. 2 Idem. 193. 3 Idem. 196. 
4 Marshall's Life of Washington, vol. 5, c. 1, p. 46. 



24 ORIGIN OF THE 

four things which I humbly conceive are essential to the 
well-being, I may even venture to say, to the existence of 
the United States as an independent power. 1. An in- 
dissoluble union of the states under one federal head. 
2. A sacred regard to public justice. 3. The adop- 
tion of a proper peace establishment. 4. The preva- 
lence of that pacific and friendly disposition among the 
people of the United States which will induce them to 
forget their local politics and prejudices." 

§ 12. Under the first head he remarked that, "It is 
only in our united character that we are known as an 
empire, that our independence is acknowledged, that our 
power can be regarded, or our credit supported among 
foreign nations. The treaties of European powers with 
the United States of America will have no validity on a 
dissolution of the Union. We may find by our own 
unhappy experience, that there is a natural and neces- 
sary progression from the extreme of anarchy to the 
extreme of tyranny ; and that arbitrary power is most 
easily established on the ruins of liberty abused to 
licentiousness." Such were the sentiments of Wash- 
ington, and such were those then of the nation. 

§ 13. In January, 1786, the Legislature of Virginia 
recommended a meeting of commissioners from the 
several states to review the powers of government. 
The delegates of live states met at Annapolis, but 
adjourned, proposing a general convention at Phila- 
delphia. 

§ 14. In 1787, the convention of delegates from twelve 
states was convened, and after much deliberation, formed 
the present Constitution of the United States. 

§ 15. By resolution 1 of the convention, it was directed 
to be carried into effect when ratified by the conventions 
of nine states chosen by " the people thereof." That 
ratification, after much opposition, scrutinizing discus- 

1 Marshall's Wash. 5 vol. p. 129. 



CONSTITUTION OF THE UNITED STATES. 25 

sion, and the adoption of several amendments it finally- 
received, and all the states, eventually assenting to its 
provisions, became members of the Union. In 1789 it 
went into practical operation, and from that period to 
this, more than forty years, has withstood unharmed 
the various violent influences of local feuds, opposing 
interests, domestic insurrection, and foreign violence. 

§ 16. We have seen that, at several different periods, 
viz. 1643, 1754, 1765, 1774, 1777, and in 1787, the 
territories composing what is called the United States 
formed associations for the purposes of a common 
government and general welfare. Let us now ex- 
amine how these were originally constituted, and in 
what manner modified by time and experience. 

§ 17. By the articles of confederation made in 1643, 
between the colonies of Massachusetts, Connecticut, 
and New-Haven, it was expressly declared to be a 
league, under the name of the United Colonies of New- 
England. The chief points in this confederation were, — 
1st. That each colony should have peculiar jurisdiction 
and government within its own limits. 2d. That the 
quotas of men and money were to be furnished in 
proportion to the population, for which purpose a census 
was to be taken from time to time of such as were able 
to bear arms. 3d. That to manage such matters as 
concerned the whole confederation, a Congress of two 
commissioners from each colony should meet annually, 
with power to weigh and determine all affairs of war 
and peace, leagues, aids, charges, and whatever else 
were proper concomitants of a confederation offensive 
and defensive ; and that to determine any question T 
three-fourths of these commissioners must agree, or the 
matter is to be referred to the General Courts ; 4 th. That 
these commissioners may choose a president, but that 
such president has no power over the business or pro- 
ceedings. 5th. That neither of the colonies should 
engage in any war without consent of the general con> 
C 



26 ORIGIN OF THE 

missioners. 6th. That if any of the confederates 
should break any of these articles, or otherwise injure 
any of the other confederates, then such breach should 
be considered, and ordered by the commissioners of the 
other colonies. 

§18. Now it will be observed that this confederacy 
was, by agreement, a mere league, for motives of amity, 
for objects of general offence and defence. As such, it 
was as good a model as any which history presents us ; 
but as a government, it was utterly inefficient : its prin- 
cipal defects in the last point of view were, 1. The want 
of an Executive, without which it could never act as a 
whole. All the acts of the commissioners had to be 
enforced by each separate colony: they did not act 
upon individuals. 2d. The want of a General Judiciary, 
by which offences arising between the several members, 
or against the whole confederacy, might be taken cog* 
nizance of. 3d. The want of any general power to 
obtain credit or emit money. In short, this league did 
not pretend to be a government, and was deficient in 
nearly all the attributes of sovereignty. 

§ 19. Upon the last provision, that providing a 
remedy for breaches of the league by one of the 
confederacy, it is worthy of remark, that it never 
entered into the heads of people then, that it was pos- 
sible for one party to a compact to make itself judges of 
its own breaches of it : on the contrary, it was provided 
that such breaches should be judged of by the other 
members of the confederacy. It was reserved for a much 
later period of history, and it would seem for far more 
ingenious men, to divine a mode by which a party to a 
contract can at once make itself a judge of its own vio- 
lations of it, and invalidate at pleasure its provisions. 

§ 20. The next plan of association was that formed 
by the commissioners who met at Albany in 1754. It 
was not accepted by the mother country, but may serve 
to show what progress in ideas of government had then 



[constitution of the united states. 27 

been made by the colonists. It is remarkable that the 
scheme proposed did not purport, like the other, to be a 
league, or confederation, but a plan for one general 
government. Its principal provisions were, — 1. That the 
general government should be administered by a presi- 
dent-general appointed by the crown, and a grand coun- 
cil chosen by the representatives of the people in their 
general assemblies. 2. That the council should be 
chosen every three years, and shall meet once each 
year. 3. That the assent of the president be necessary 
to all acts of the council, and that it is his duty to see 
them executed. 4. That the president and council 
may hold treaties, make peace, and declare war with 
the several Indian tribes. 5. That for these purposes 
they have power to levy and collect such duties, 
imposts, and taxes as to them shall seem just. 

§ 21. It will be seen that this was a much nearer 
approach to an organized government than the con- 
federacy of 1643. It provided for a strong executive, 
but was without the sanction of a general judiciary, and 
made no provision for regulating the currency. 

§ 22. We come now to the articles of confederation. 
During the early part of the Revolution, the powers of a 
general nature were executed without question or 
hinderance by a ] congress of deputies from the several 
states. Patriotism and a common danger absorbed all 
other principles* and made ordinary ties unnecessary, 
A universal opinion, however, prevailed in favour of 
union, and after much deliberation, 2 Congress in No- 
vember, 1777, agreed upon the articles of confederation. 
They were, after various delays, ratified by the different 
states ; the principal objection being in respect to the 
wild lands, which were claimed by several of the states, 
but which others urged should go to bear the common 
burthen. In the sequel, these lands were nobly ceded 

1 Journal of Congress, vol. 3, p, 475. « i Kent Comm. 197. 



28 ORIGIN OF THE 

by the states who held them, to the common benefit of 
the Union. 

$ 23. The Articles of Confederation provided, — 

1st. That the style of the Confederacy should be the 
" United States of America." 

2d. That each state should retain its sovereignty, 
independence, and such rights as were not delegated to 
the general Congress. 

3d. That the object of the league was the general 
welfare, and the common defence against foreign ag- 
gression. 

4th. That the citizens of one state shall have the 
privileges of citizens in another, and that full faith and 
credit shall be given to the records, acts, and judicial 
proceedings in another state. 

5th. That for the management of the general inter- 
ests, delegates shall be annually appointed to meet in 
Congress, — each state having not less than two nor 
more than seven ; and that in determining questions in 
Congress, each state shall have one vote. 

6th. That no state shall, without the consent of Con- 
gress, enter into any treaty or alliance with any 
foreign power or nation, or with any other state ; nor 
lay any imposts or duties interfering with any stipu- 
lations contain^ in any treaty made by Congress ; nor 
keep any vessels of war or armed forces in time of 
peace, except such as Congress may deem necessary ; 
nor engage in any war without the consent of Congress, 
unless the state be actually invaded, or the danger 
imminent ; nor grant letters of marque, unless such state 
be infested with pirates. 

7th. All charges for the general welfare shall be 
defrayed out of a common treasury, which shall be 
levied in proportion to the value of land within each 
state. 

8th. The "United States in Congress assembled" 
shall have the exclusive right of making peace and war ; 



CONSTITUTION OF THE UNITED STATES. 29 

entering into treaties and alliances ; granting letters of 
marque, and establishing courts and rules for the trial 
of piracies and felonies, and determining questions in 
relation to captures ; and that the Congress have the 
power to determine all questions and differences be- 
tween two or more states, concerning any cause what- 
ever, which authority shall be exercised by instituting 
a court in manner and form as provided, where judg- 
ment shall be final and decisive and that they have 
power to fix the standard of weights, measures, and 
coin ; establish Post-offices and commission Officers ; 
that they shall have power to appoint a committee of 
the states, and such other civil officers as may be 
necessary to manage the general affairs of the United 
States under their direction ; to elect their President ; to 
fix the sums of money to be raised ; to borrow money 
and emit bills of credit ; to agree on the number of 
forces to be raised, which are to be distributed among 
the states in proportion to their white inhabitants ; that 
" the United States" shall not exercise these powers, 
unless nine states assent to the same, nor shall any ques- 
tion except that of adjournment be determined unless by 
the votes of a majority of the states. 

9th. It is further provided, that the committee of the 
states, or any nine of them, shall be authorized to exe- 
cute, in the recess of Congress, such of the powers of 
Congress as the United States, or any nine of them, shall 
think proper to vest them with. 

10th. All debts contracted under the authority of 
Congress shall be deemed and considered as a charge 
against the United States, for which the public faith is 
pledged. 

11th. That every state shall abide by the determina- 
tions of Congress upon the questions submitted to it, 
and the union shall be perpetual. 

§ 24. Such is a synopsis of the articles of confeder- 
ation, under which the United States terminated the war 
C2 



30 ORIGIN OF THE 

of the Revolution, and continued till the adoption of the 
Constitution. It will be remarked, 

1. That the states still assumed the style of a league 
or confederacy, and that, 2dly, they had notwithstanding 
granted away many attributes of sovereignty, even 
greater than those proposed to be vested in the Presi- 
dent and Council by the plan of 1754. 

§ 25. This Confederacy had many obvious and pal- 
pable deficiencies, as a government, principally, how- 
ever, in the mode and process of its administration. 

1. There was still wanting an Executive in form, 
though nearly all its powers were granted to Congress 
and the " committee of the states." 

2. No general Judiciary was provided; yet they 
had gone so far as to provide a Marine or Admiralty 
Court, and a general tribunal to settle conflicts and dis- 
putes between the several states. 

3. The great deficiency was, that the articles of con- 
federation did not act upon individuals, but upon the 
states ; and that to raise men and money, it was neces- 
sary to act through the medium of many distinct govern- 
ments. 

§ 26. By a comparison of the original association of 
1643, the plan of 1754, and the articles of confeder- 
ation, we find that the minds of the colonists had 
gradually tended from the notion of separate sovereignties 
to that of a general and united government. Each 
change, founded on experience, had given additional 
strength to the confederacy. Thus the association of 
1643 was a simple league, existing by means of trea- 
ties, and exercised through commissioners ; and though 
possessing many of the attributes of sovereignty, holding 
them only through an alliance. The plan of 1754, 
though not adopted, was that of a general government, 
and had a strong executive. The articles of confeder- 
ation, though reverting back to the form of a confederacy, 
greatly increased, in theory, the powers of government : 



CONSTITUTION OF THE UNITED STATES. 31 

For, example, it superadded to the powers of former 
Congresses those of emitting bills of credit, establishing 
Marine Courts, and judging between the states. Under 
this confederation, the United States, by the peace of 
1783, achieved their separate and independent existence 
as a nation. Yet, we have already seen, it was found 
insufficient for the purposes of a stable government, and 
how, in 1787, the present Constitution was formed and 
adopted. 

§ 27. In this chapter we have established these 
propositions : — 

1st. That the idea of a union of the colonies origin- 
ated in the very earliest stage of their existence. 

2d. That their idea was that of a government ex- 
ercised for the general welfare, and founded upon a 
representation of the people. 

3d. That for this purpose they from time to time 
formed leagues and confederacies. 

4th. That these associations were made closer and 
stronger, as time and experience progressed. 

5th. Lastly, that they were all merged in the " more 
perfect union" and general government established by 
the Convention of 1787. 



32 CONSTITUTION OF 



CHAPTER II. 

CONSTITUTION OF THE UNITED STATES. 

PREAMBLE. 

^ 28. We, the People of the United States, in order to 
form a more perfect union, establish justice, ensure domes- 
tic tranquillity, provide for the common defence, promote 
the general welfare, and secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish this 
Constitution for the United States of America. 

§ 29. In this preamble are asserted, — 1st, the power 
making the Constitution, " We the People," &c. ; 2dly, 
the object for which it was formed, the more perfect 
union, general welfare, &c. ; 3dly, the subject of it, the 
United States. 

§ 30. The first position, that " We the People do or- 
dain," &c, is the foundation of the most solemn inquiry 
which ever agitated the American people, — whether this 
phrase be a mere nullity, or whether the Constitution 
was indeed formed by the whole people ? 

§ 31. It is one of the rules 1 for interpreting laws, 
that they must be understood according to the context, 
i. e. the whole must be taken in connexion. This pas- 
sage will, therefore, be better understood when we have 
reviewed the entire Constitution. The preamble throws 
light upon the instrument, and the instrument upon the 
preamble. It is sufficient to remark here, that the 
terms used are in perfect accordance with the mode by 
which the Constitution was ratified : this was by con- 

1 Blackstone's Comm. 59. 



THE UNITED STATES. 33 

ventions 1 of the people, and not by the 9 Legislatures of 
the states. On the other hand, the convention 2 which 
formed the Constitution was composed of delegates 
chosen by the state Legislatures. The necessary in- 
ference is, that the states, in their official capacity, pro- 
posed the Constitution, and the people, by ratifying it, 
gave it authority : it is therefore a government founded 
by separate states, but receiving its sanction and validity 
from the whole people. 

§ 32. 2d. The objects proposed are exactly consist- 
ent with this idea. A perfect union, and a government 
legislating for the general welfare, are incompatible 
with separate and independent sovereignties. The terms 
independence and sovereignty, used in relation to mat- 
ters of government and politics, must of course be un- 
derstood in a political sense, and according to our defini- 
tion. There are some common acceptations of these 
terms in which a much lower importance is attached to 
sovereignty. Thus, a man may be perfectly sovereign 
in his own house, and yet be subject to the laws of so- 
ciety. An animal may be utterly independent of an- 
other animal, and yet a member of, and subject to the 
laws of, the animal kingdom. In this sense the states, 
considered as composing a society, are sovereign and 
independent in their domestic and municipal relations. 
These terms, in their political sense, have a higher mean- 
ing : as applied to nations, independence does not admit 
of a close union, nor sovereignty of another government 
legislating for the general welfare. 

THE CONSTITUTION. 

§ 33. The Constitution of the United States contains 
seven articles, — to which were added several miscella- 
neous amendments. 

Article 1st. Relates to the Legislative Power. 

1 2 Pitkin's Civil Hist. p. 264. 2 Idem, 219^ 



34 CONSTITUTION OF 

Article 2d. To the Executive Power. 

Article 3d. To the Judicial Power. 

Article 4th. To the validity of Public Acts and 
Records, — the rights of Citizenship, — the admission of 
new States, — and the forms of State Governments. 

Article 5th. Relates to the mode of amending the 
Constitution. 

Article 6th. To the national faith and the binding 
force of the Constitution. 

Article 7th. To the mode of its ratification. 

§ 34. That we may have an accurate view of the 
Constitution, not merely as it is written, but as it has 
been construed, and acted upon by the various depart- 
ments of the government, we shall take these Articles 
up by sections, and consider them in connexion with 
judicial and other decisions upon them. 

ARTICLE I. 

§ 35. Section 1st. All legislative powers herein 
granted shall be vested in a Congress of the United 
States, which shall consist of a Senate and House of Rep- 
resentatives. 

§ 36. Whenever power is vested in a representative 
body, it is usually divided between a body of direct rep- 
resentatives and one more remote and differently consti- 
tuted. Thus, in Great Britain, the legislative power is 
vested in the Commons and the House of Peers ; so 
also in France, the House of Deputies and the Peers ; 
so also the legislative power of the several states is sim- 
ilarly vested in two houses. The provision is a wise 
one, in rendering measures less precipitate, and in re- 
moving one portion of the Legislature from the imme- 
diate action of popular passion, while it retains it within 
the ultimate influence of the people. 

$37. Section 2d. First Clause. The House of Rep- 
resentatives shall be composed of members chosen every 
second year by the people of the several states ; and the 



THE UNITED STATES. 35 

electors in each state shall have the qualifications requisite 
for electors of the most numerous branch of the state 
Legislature, 

§ 38. About the frequency of elections there has 
been much dispute, In England, the period for which 
a representative is chosen is seven years ; in some of 
the states it is two, and in some only six months. In 
the Constitution it is fixed at two years, as being a 
period sufficiently long to give the people some time for 
reflection, and yet sufficiently short to secure the re- 
sponsibility of the representative. 

As the electors of the different state Legislatures varied 
materially, it was thought proper- that the representa- 
tives from each state should be chosen by the people, 
in the manner they had appointed for the choice of their 
own Legislature. 

§ 39. 2d clause. No person shall be a representative 
who shall not have attained to the age of 25 years, and 
been 7 years a citizen of the United States, and ivho shall 
not, when elected, be an inhabitant of that state in which 
he shall be chosen. 

§ 40. The propriety of requiring a seven years' citizen- 
ship cannot be doubted ; aliens cannot be regarded as a 
part of the nation ; and length of time, as well as natural- 
ization, is required to make them acquainted with the 
interests of the country. 

§ 41. A representative must be an inhabitant of the 
state from which he is chosen. In respect to this provi- 
sion, a question has arisen, whether a man residing at the 
seat of government in his official capacity ceases to be a 
legal inhabitant of the state of which he was a citizen ? 
It was decided in the case of Mr. John Bailey, 1 a rep- 
resentative from Norfolk district, Massachusetts, who 
had for several years been a clerk in the department of 
State, that an official residence in the District of Colum 

1 See Journals of Congress. 



36 CONSTITUTION OF 

bia did not take away any of his qualifications as a 
citizen of the state whence he came. This decision 
will probably be adhered to, as a contrary one would 
at once destroy all the political privileges of those who 
become members of the government, and therefore 
would not have been within the spirit of the Constitution. 

§ 42. 3d clause. Representatives and direct taxes 
shall be apportioned among the several states ivhich may 
be included within this Union, according to their respective 
numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to 
service for a term of years, and excluding Indians not 
taxed, three-fifths of all other persons. The actual 
enumeration shall be made within three years after the first 
meeting of the Congress of the United States, and within 
every subsequent term of ten years, in such a manner as 
they shall by law direct. The number of representatives 
shall not exceed one for every thirty thousand, but each 
state shall have at least one representative ; and until 
such enumeration shall be made, the state of Neiv- Hamp- 
shire shall be entitled to choose three ; JMassachusetts 
eight ; Rhode Island and Providence Plantations one ; 
Connecticut five; New-York six; New-Jersey four; 
Pennsylvania eight ; Delaware one ; Maryland six ; 
Virginia ten; North Carolina five; South Carolina five; 
and Georgia three. 

§ 43. It is to be observed, that the representative popu- 
lation is not the whole population of the United States ; 
after including " all free persons," " excluding Indians 
not taxed," it includes " three-fifths of all other per- 
sons." The other persons here mentioned are slaves, 
and consequently the states holding slaves have a repre- 
sentation for three-fifths of the whole number : thus, in 
some of the states, the slaves exceed the whites in num- 
ber, and as these slaves exercise no political privileges 
themselves, it follows that their masters hold double 
the political power held by the citizens of the non- 



THE UNITED STATES. 37 

slave-holding states. Of this, however, they do not, 
and ought not, to complain, as it was the necessary 
result of the compromise, without which it is probable 
the Union never could have been formed. 

§ 44. It is said that the electors must be the same as 
those for " the most numerous branch of the state Legis- 
lature." Some of these electors, as in New- Jersey, North 
and South Carolinas, must have a property qualification, 
and others again come in under universal suffrage; 
hence the qualifications for electors are not uniform. 

§ 45. The mode of electing representatives to Con- 
gress is not the same in the several states. Thus, in 
some, it is by general ticket, as in Connecticut and 
New-Jersey: in others, by the district system, as in 
New- York and Pennsylvania. 

§ 46. Under this section has arisen a question in 
respect to the mode of apportioning representatives. 
Congress passed a law, 1 giving a number of representa- 
tives equal to the whole population of the United States 
divided by 30,000. This gave a larger number than 
would arise by dividing the population of the respective 
states by the same number, and adding together the 
quotients. The additional members were given to the 
states having the largest fractions. This principle was 
objected to by General Washington, who was then 
President, and the bill returned with his reasons. The 
objection was, that the Constitution required that the 
representation should be apportioned among the several 
states, and not according to the whole population of the 
Union. The bill was returned to Congress, the matter 
again discussed, and the objectionable feature struck out. 
The same principle came up under the census of 1830. 2 
The House of Representatives passed the apportionment 
bill in the usual form, and the Senate inserted a provision, 
making the number for a single representative a divisor of 

; l Pitkin's Civil Hist. 351. 2 Journals of Congress, 1832. 



38 CONSTITUTION OF 

the whole representative population of the United States, 
and giving a representative to the largest fractions. The 
House would not agree to the principle, and the Senate 
finally receded from their ground. It may therefore be 
now considered as a settled construction of the Consti- 
tution, that the ratio of representation must be a com- 
mon divisor of the numbers in the several states, and 
not in the whole Union. 

§ 47. This section likewise requires, that an enu- 
meration should be taken every ten years of the inhabit- 
ants of the United States. This commenced in 1790 by 
Act of Congress, and has been continued ever since. 
The ratio of representation has been altered at each 
census. The ratio, that is, the common divisor, or num- 
ber which is entitled to a representative, has been con- 
stantly increasing, but the increase being in a less 
proportion than that of the population, the number of 
representatives has likewise increased. 

§ 48. Clause 4th. When vacancies happen in the 
representation from any state, the executive authority 
thereof shall issue writs of election to fill up such vacan- 
cies. 

§ 49. The necessity for this clause frequently arises, 
by virtue of the death or resignation of members of 
Congress. In some states, as in Massachusetts and 
Vermont, repeated elections have to be held before a 
choice can be made, in consequence of a majority of 
the votes being required to elect. 

§ 50. 5th Clause. The House of Representatives shall 
choose their Speaker, and other officers, and shall have 
the sole power of impeachment. 

§ 51. The power of impeachment is one of the most 
important under the Constitution. It is the only mode in 
which the Judiciary is made responsible, and it is a 
salutary and necessary check upon the President and 
his officers. 

§ 52. The most prominent examples of impeachment 



THE UNITED STATES. 39 

under the Constitution are those of Judges Chase and 
Peck. 1 In March, 1804, the House of Representatives, 
by resolution, impeached Samuel Chase, — one of the 
Judges of the Supreme Court, — of malversation, im- 
proper and arbitrary conduct in office. In 1830, they 
did the same in relation to James H. Peck, District 
Judge for the state of Missouri. They were both 
acquitted. 

§ 53. The mode of impeachment is this : the House 
pass a resolution to impeach, and then appoint a com- 
mittee to manage the impeachment, and prepare the 
articles ; articles making a plain statement of the case, 
in the manner, but with less formality than an indict- 
ment, are then adopted by the House. The Senate are 
then officially informed that such charges are preferred 
by the House, and resolve, that on a given day the 
Senate will sit as a Court of Impeachment. In the 
mean time, a summons to appear and answer is served 
upon the party, and as many subpoenas for witnesses 
are issued as the managers or the party accused may 
direct. On the day appointed for trial, the appearance 
or non-appearance of the party is recorded, and at 
12 o'clock, the Secretary of the Senate administers 
an oath to the President of the Senate, that " he will do 
impartial justice according to the Constitution and laws 
of the United States." The same oath is then adminis* 
tered by the President to each senator present. 2 Council 
are then heard for the respective parties ; all motions 
are addressed to the President, and decisions are made 
by ayes and nays without debate. Witnesses are ex- 
amined and cross-examined, in the usual manner. 
Questions put by senators are reduced to writing, and 
put by the President. It requires two-thirds to make a 
conviction. 

1 See Journal of the 8th Congress, 2 - Rules adopted by the 
Seriate on the trial of S. Chas,e, 



40 CONSTITUTION OF 

§ 54. Section 3d. 1st Clause. The Senate of the 
United States shall be composed of two senators from 
each state, chosen by the Legislature thereof for six 
years ; and each senator shall have one vote. 

fy 55. In the Senate, each state is equally represented* 
It has been said by an eminent jurist, 1 that this feature 
of the Senate, and the mode of its election by the Legis- 
latures, are evidences of the separate and independent ex- 
istence of the states. If, by separate and independent 
be meant any thing more than local and municipal inde~ 
pendence, the truth of the proposition is not readily 
seen. The counties of Great Britain were till recently 
equally represented in the House of Commons ; so also 
are the counties of the state of Maryland in the state 
Legislature ; yet, who would attribute a separate ex- 
istence, or independent power, to these counties beyond 
mere local county purposes ? The very contrary of this 
position, as it respects the United States, is shown from the 
fact, that the Senate votes, not by states, but by persons : 
hence, the members from a given state may, and often 
do, vote on opposite sides of a question. Here the rep- 
resentation of the state is neither separate nor inde- 
pendent, but mixed up with the whole mass. It is na 
doubt true, that this provision was intended to secure to 
the people of each state an equality of political power 
in the Senate ; but it no more proves the separate exist- 
ence, independence, or sovereignty of the states, than the 
government of Maryland acknowledges the separation 
and independence of its counties. As to the election of 
the senators by the state Legislatures, it is only the mode 
by which the people of the state exercise their power. 
In the same manner, the counties in Maryland send an 
equal number of delegates to a convention, which con- 
vention choose the state Senate ; now the convention is 
the mere form through which the people express iheit 

M Kent's Comm, 211, 



THE UNITED STATES. 41 

will; — it is no acknowledgment of any separate au- 
thority in those counties. 

§ 56. As it is provided, that the senators shall be 
chosen by the Legislatures, it is settled by the practice 
of most of the states, that they may be chosen by joint 
ballot of both houses, voting by individuals, and not 
necessarily by the Legislature in its official capacity, 
each house having a negative on the other. 

§ 57. 2d Clause. Immediately after they shall be 
assembled, in consequence of the first election, they shall 
be divided, as equally as may be, into three classes. The 
seats of the senators of the first class shall be vacated 
at the expiration of the second year, of the second class 
at the expiration of the fourth year, and of the third 
class at the expiration of the sixth year, so that one- 
third may be chosen every second year ; and if vacan- 
cies happen by resignation or otherwise, during the 
recess of the Legislature of any state, the executive 
thereof may make temporary appointments, until the 
next meeting of the Legislature, which shall then Jill such 
vacancies. 

§ 58. The members of the first Senate were, in con- 
formity to the Constitution, divided by lot into three 
classes, the terms of service of which expired in two, 
four, and six years, and ever since one-third has been 
removed every second year. In drawing the lots, care 
was taken that but one vacancy should occur at the 
same time in the representation of any one state. 

§ 59. It has been decided 1 under this clause, that the 
Governor cannot make an appointment during the recess 
of the Legislature, in anticipation of a vacancy. Thus, 
the term of James Lanman, senator from Connecticut, 
expired on the 3d March, 1825. The President had 
convoked the Senate to meet on the 4th of March. 
The Legislature of Connecticut did not meet till May. 

1 Gordon's Digest of the Laws of the United States, 1827; Ap- 
pendix, note 1. 

D2 



42 CONSTITUTION OF 

The Governor in February appointed Mr. Lanman to 
sit after the 3d of March. The Senate decided that 
such an appointment cannot be constitutionally made ; 
the vacancy must first occur. 

§ 60. 3d Clause. No person shall be a senator who 
shall not have attained to the age of thirty years, and been 
nine years a citizen of the United States, and who shall 
not, when elected,be an inhabitant of that state for which he 
shall be chosen. 

§ 61. All these limitations are manifestly founded 
upon propriety. It is probable they might have been 
made still stronger without injury to the public interests. 

§62. 4th Clause. The Vice-President of the United 
States shall be President of the Senate, but shall have no 
vote unless they be equally divided. 

§ 63. Legislative bodies have generally the power of 
choosing their own presiding officer ; in this instance, 
however, the Constitution conferred the office of presiding 
over the Senate to the Vice-President ; one reason may 
have been that he has no other duties to perform, and 
the chair of the Senate conferred dignity upon him. The 
casting vote of the Vice-President has been frequently 
given, and in some very important cases. 

§ 64. In 1826, 1 a question arose whether the Vice- 
President had the power of preserving order independent 
of the rules of the Senate ? The then Vice-President, 
Mr. Calhoun, decided that he had not. In 1823, how- 
ever, the Senate made a rule, that " every question of 
order shall be decided by the President without debate, 
subject to appeal to the Senate." 

§ 65. 5th Clause. The Senate shall choose their other 
officers, and also a President pro tempore, in the absence of 
the Vice-President, or when he shall exercise the office of 
President of the United States. 

§ 66. The power of choosing a President pro tempore 

1 1 American Annual Register, 86, 87 ; 3 Idem. 99. 



THE UNITED STATES. 43 

is constantly exercised, the Vice-President being fre- 
quently absent. 

§ 67. 6 th Clause. The Senate shall have the sole power 
to try all impeachments. When sitting for that purpose* 
they shall be on oath, or affirmation. When the President 
of the United States is tried, the Chief Justice shall pre- 
side ; and no person shall be convicted without the con- 
currence of two-thirds of the members present. 

§ 68. The impeaching power, and some of the rules 
of conducting an impeachment, have been heretofore 
noticed. 1 This mode of impeachment and trial under 
the Constitution is derived from the British Parliament, 
where the Commons have the sole power of impeach- 
ment, and the House of Lords the power of trial. It 
seems, however, to have been introduced into the Com- 
mon Law from the customs of the Germans ; among 
them, however, the people were both accusers and 
judges. 

§ 69. In the trial of the President, the Chief- Justice 
presides, in order to preclude the Vice-President, who, 
in case of a vacancy, succeeds to the Presidency, from 
having any part in the creation of that vacancy. 

§ 70. 7th Clause. Judgment in case of impeachment 
shall not extend farther than to a removal from office, 
and disqualification to hold and enjoy any office of 
honour, trust, or profit under the United States; but 
the party convicted shall nevertheless be liable, and sub' 
ject to indictment, trial, judgment, and punishment ac- 
cording to law. 

In England, the judgment upon impeachments extends, 
not only to removal from office, but to the whole penalty 
attached by law to the offence. The House of Lords 
may, therefore, inflict capital punishment, banishment, or 
forfeiture of goods, according to its direction. 2 

§ 71. In another place 3 we have stated the mode of 

1 Sections 51, 52, 53. * Com. Digest. Parliament, L. Ui. 

3 Section 53. 



44 CONSTITUTION OF 

procedure in the Senate upon the trial of impeachments. 
When the evidence is gone through, and the parties have 
been heard, the Senate proceed to consider the case. 
If debates arise, they are in secret ; a day is then as- 
signed for a public decision by yeas and nays. When 
the court has met, the question is propounded by the 
President of the Senate to each individual member by 
name : whereupon the member rises and answers, guilty, 
or not guilty, as his opinion is. If upon no one article 
the party is found guilty by two-thirds of the Senate, he 
is declared acquitted by the President of the Senate. If 
guilty, the Senate proceed to fix and declare the punish- 
ment. 

§ 72. Section 4th. 1st Clause. The times, places, 
and manner of holding elections for senators and repre- 
sentatives shall be prescribed in each state by the Legis- 
lature thereof; but the Congress may, at any time, by 
law, make or alter such regulations, except as to the 
places of choosing senators. 

§73. Under this section Congress has the power to 
appoint the times and modes of choosing representatives 
and senators. This power they have never exercised, 
and the time and mode of choosing them is consequently 
very various. In some states, as New- York and Ohio, 
members of the House of Representatives are chosen 
in the year previous to the dissolution of Congress ; in 
others, as New-Hampshire and Virginia, in the spring 
following ; and in others again, as in Indiana, in the 
following summer. Congress has, except on two occa- 
sions, met on or about the first Monday in December ; 
but suppose, that from the emergency of the case, they 
should appoint a day early in the spring ; in what man- 
ner would those states now electing representatives in 
the summer, be represented ? The power of regulating 
the times and plaees of electing representatives was thus 
given to Congress, in order that it might have the means 
of its own preservation; otherwise, the states might 
prevent an election. 



THE UNITED STATES. 45 

§ 74. 2d Clause. The Congress shall assemble at 
least once in every year ; and such meeting shall be on 
the first Monday in December, unless they shall by law 
appoint a different day. 

§ 75. This provision was inserted in order to establish, 
beyond the possibility of prevention, the annual sessions 
of Congress ; the time of meeting within the year has 
been fixed, but Congress may change it, and on two or 
three occasions they have held extra sessions. 

§ 76. Section 5th. 1st Clause. Each House shall be 
the judge of the elections, returns, and qualifications of 
its own members ; and a majority of each shall constitute 
a quorum to do business ; but a smaller number may ad- 
journ from day to day, and may be authorized to compel 
the attendance of absent members, in such a manner and 
under such penalties as each House may provide. 

§ 77. Some number must be fixed to constitute a 
quorum ; it is here fixed at a majority, upon the general 
principle recognised in all the institutions of the United 
States, that the majority must govern. If any less num- 
ber were required to make a quorum, the minority^ by 
acting in the absence of the majority, might govern ; and 
if a larger number were required, the minority might 
prevent legislation by absenting themselves. 

§ 78. The House and Senate regularly appoint com- 
mittees on elections, which investigate all contested 
claims to seats, and all doubtful returns, qualifications, 
&c. The committees report to the House, which makes 
the ultimate decision. From this decision there is no 
appeal, and it is obvious there ought not to be, for the 
power could be nowhere else lodged so safely. 

§ 79. 2d Clause. Each House shall determine the 
rules of its proceedings, punish its members for dis- 
orderly behaviour, and, with the concurrence of two* 
thirds, expel a member. 

§ 80. The rules of proceedings enacted are numerous^ 
and will be considered in another place. 



46 CONSTITUTION OF 

§81. The power to "punish its members for dis- 
orderly behaviour" has been frequently exercised. 
Thus, in 1797, William Blount, a senator from Ten- 
nessee, was expelled for " a high misdemeanour, entirely 
inconsistent with his public trust and duty as a senator." 
His offence was an attempt to seduce an Indian agent 
from his duty, and alienate the affections of the Indians 
from the authorities of the United States. The offence 
was not statutable, nor committed in his official charac- 
ter, nor committed during the session of Congress, nor 
at the seat of government. Yet he was expelled from 
the Senate, and afterward impeached. 1 

§ 82. It is, therefore, settled by the Senate, that ex- 
pulsion may be for any misdemeanour, though not 
punishable by any statute, which is inconsistent with 
the trust and duty of a senator. 

§ 83. Although there is a power enumerated given to 
Congress to punish disorderly behaviour, yet there is 
none expressly given to punish contempts. Yet this 
power, being absolutely necessary to the order and 
security of the House, has been adjudged, both by Con- 
gress and the Supreme Court, to be a necessary incident 
to the powers of Congress. 

§84. This power was exercised by the House of 
Representatives in the case of Robert Randall, in 1795, 
for an attempt to corrupt a member. 

§ 85. The same point was solemnly decided by the 
Supreme Court in the case of Anderson vs. Dunn. 2 
One Anderson was committed for a contempt of the 
House, and placed in the custody of the sergeant-at- 
arms. An action of trespass was brought against the 
officer, and the case carried to the Supreme Court. 
That tribunal decided that the House had the power, 
and that it extended no farther than imprisonment, and 
continued no longer than the duration of the power that 

1 % Story's Comm. 299. 2 6 Wheaton, 304, 



THE UNITED STATES. 47 

imprisoned, and consequently terminated with the dis- 
solution of Congress. 

§ 86. The same power was exercised in 1800 by the 
Senate in the case of William Duane, who was found 
guilty of a printed libel on the Senate, and punished with 
imprisonment. So also by the House of Representatives, 
in the case of Samuel Houston, who assaulted a member 
for words spoken in debate, and was found guilty of a 
contempt and reprimanded. 

$ 87. 3d Clause. Each House shall keep a 1 journal of 
its proceedings, and from time to time publish the same, 
excepting such parts as may in their judgment require 
secrecy ; and the yeas and nays of the members of either 
House, on any question, shall, at the desire of one-fifth of 
those present, be entered on the journal. 

§ 88. The yeas and nays, being the means by which 
the constituents discover the conduct of their representa- 
tives, are often called for, and generally granted. No 
important question is agitated upon which the yeas and 
nays are not recorded. This provision is very important ; 
for, as the periods of elections are short, the representa- 
tive is constantly held responsible to the people, and 
there is no scrutiny which he dreads more than that into 
his recorded votes. 

§ 89. 4th Clause. Neither House, during the session 
of Congress, shall, without the consent of the other, ad- 
journ for more than three days, nor to any other place 
than that in which the two Houses shall be sitting. 

§ 90. By this provision, it is impossible that either 
House should prevent the progress of business, and each 
has a complete negative on the other. 

§ 91. Section 6th. 1st Clause. The Senators and 
Representatives shall receive a compensation for their 
services, to be ascertained by law, and paid out of the 
Treasury of the United States. They shall in all cases, 
except treason, felony, and breach of the peace, be 
privileged from arrest during their attendance at the 
session of their respective Houses, and in going to or 



48 CONSTITUTION or 

returning from the same ; and for any speech or debate 
in either House, they shall not be questioned in any other 
place. 

§ 92. The compensation allowed by Congress for 
their own service was, and is now, a per diem allowance, 
with mileage for the distance travelled, going and return- 
ing. Congress, several years since, enacted that each 
member should receive a fixed compensation; thus, in 
fact, making themselves salary officers. This was 
received by the people with so much censure and con- 
demnation, that the next Congress was obliged to repeal 
the law. 

§ 93. The privilege from arrest during attendance 
upon legislative business is derived from the Saxon 
institutions. It was the privilege of the members of 
the Saxon Wittenagemot, 1 or assembly of wise men, 
and thence has descended through all the systems of 
English and American Law. 

§ 94. The effect of this privilege is, that the arrest of 
a member is unlawful, and a trespass for which he may 
maintain his action. He may also be discharged upon 
a writ of Habeas Corpus, 2 and the arrest may be 
punished as a contempt of the House. 

§ 95. In going to and returning from Congress, ample 
time is allowed, and a little deviation does not take 
away the privilege. 

§ 96. The privilege from arrest takes place by force of 
the election, and before the member has taken his seat, 
or is sworn. 

§ 97. This privilege does not extend to felony, trea* 
son, or breach of the peace ; and the terms breach of the 
peace being general, have been decided to extend to all 
indictable offences, as well as those which are only con- 
structive breaches of the peace. 3 

§ 98. The privilege of speech and debate does not 

1 1 Hume, 155. 2 2 Wilson's Rep. 151. » Blackst. 

Comm. 166. 



THE UNITED STATES. 49 

extend beyond the limits of legislative or parliamentary 
duty. Thus, for a speech merely delivered in the 
House, a member cannot be questioned ; yet, if he pub- 
lish the speech, and it contain a libel, he is liable to an 
action for it, as in any other case. 1 

§ 99. 2d Clause. No Senator or Representative shall, 
during the time for which he was elected, be appointed 
to any civil office under the authority of the United 
States which shall have been created, or the emoluments 
whereof shall have been increased, during such time; 
and no person holding any office under the United 
States shall be a member of either House during his con- 
tinuance in office. 

§ 100. The first part of this clause was inserted as 
a safeguard against venality ; yet were there really any 
danger from such a source of corruption, it would not 
seem to be prevented by this provision, for it extends only 
"during such time," — the time for which he vms elected, 
which is so short as to leave the full force of promised 
reward beyond it. 

§101. The second provision, which prevents office- 
holders from holding a seat in Congress, is very unlike 
the Jonstitution of the British Parliament, by which any 
member of the ministry may hold a seat in the House of 
Commons. By this means there is certainly a degree 
of responsibility on the part of the ministry, which is 
unfelt by the executive officers of our government, who 
communicate with Congress only through the details of 
a report, or the columns of a newspaper. The provision 
was inserted, however, for the purpose of preventing an 
undue influence of the government upon the action of 
Congress. 

§ 102. Section 7th. Clause 1st. All bills for rais- 
ing revenue shall originate in the House of Represenla- 

1 1 Maule and Selwyn's Rep. 273. 
E 



50 CONSTITUTION OF 

fives ; but the Senate may propose or concur with amend- 
ments, as on other bills. 

§ 108. This provision is borrowed from the British Con- 
stitution, where the Commons, or Lower House, are the 
exclusive representatives of the people. In the United 
States it Las been continued, in consequence of the 
senators being rather the representatives of the state 
governments than of the people. 

§ 104. Bills for raising revenue do not include every 
bill which brings money into the treasury ; for, bills for 
establishing the Post-office, and the JMint, originated in 
the Senate; so also bills for the sale of public lauds, 
though directly productive of money, are not included 
in this phrase : its proper meaning is confined to bills to 
levy taxes. 

§ 105. '2d Clause. Every bill which shall have passed 
the House of Representatives and the Senate shall, before 
it become a law, be presented to the President of the United 
States ; if he approve, he shall sign it ; but if not, he 
shall return it with his objections to that House in which 
it shall have originated, who shall enter the objections at 
large on their journal, and proceed to reconsider it. If 
after such reconsideration, two-thirds of that House shall 
agree to pass the bill, it shall be sent, together with the 
objections, to the other House, by which it shall likewise be 
reconsidered, and if approved by two-thirds of that House, 
it shall become a law. But, in all such cases, the votes of 
both Houses shall be determined by yeas and nays, and the 
names of the persons voting for and against the bill shall 
be entered on the journal of each House respectively. If 
any bill shall not be returned by the President within ten 
days (Sundays excepted) of ter it shall have been presented 
to him, the same shall be a law, in like manner as if he 
liad signed it, unless the Congress by their adjournment 
prevent its return, in ivhich case it shall not be a law. 

§ 103. The power of the President to return bills 
with his objections has been repeatedly exercised. It 



THE UNITED STATES. 51 

was exercised, we have seen, by General Washington, in 
respect to the bill fixing the ratio of representation ; by- 
President Monroe, in 1817, on the Internal Improvement 
Bill ; by President Jackson on the Maysville road, the 
United States Bank, and in other cases. 

§ 107. This power, and the mode of its exercise, are 
so clearly defined by the Constitution as to admit of lit- 
tle doubt or misconception. If the President abuse the 
Veto, it is presumed the representatives of the people 
will pass the bill in question, by the constitutional ma- 
jority of two-thirds. 

§ 108. If a bill be not presented to the President more 
than ten days before the end of the session, the President 
has it in his power to defeat it, by simply withholding 
his signature, for he is obliged to return it with objec- 
tions (if he has any) only within ten days ; of course, if 
Congress by adjournment prevent that return within that 
time, the bill must fail if not signed by the President. 

§ 109. 3d Clause. Every order, resolution, or vote to 
which the concurrence of the Senate and House of Repre- 
sentatives may be necessary (except on a question of ad- 
journment), shall be presented to the President of the United 
States, and before the same shall take effect, shall be ap- 
proved by him, or, being disapproved by him, shall be 
repassed by two-thirds of the Senate and House of Rep- 
resentatives, according to the rules and limitations pre- 
scribed in the case of a bill. 

§ 110. The "order, resolution, or vote" to which the 
President's signature is, by this section, required, are not 
those orders, resolutions, and votes which relate to the 
separate and internal government of each House. Rules 
of order, resolutions in respect to their own conduct, 
judgments upon their own elections, votes of censure 
and thanks, being matters exclusively relating to them- 
selves, do not come within the scope of this provision. 

§ 111. Section 8th. Clause 1st. The Congress 
shall heve power to lay and collect taxes, duties, imposts, 



52 CONSTITUTION OF 

and excises ; to pay the debts and provide for the common 
defence and general welfare of the United States ; but all 
duties, imposts, and excises shall be uniform throughout 
the United Slates : 

§ 112. The first part of this clause, divided by the 
semicolon, does not confer upon Congress two separate 
powers, one " to lay and collect taxes," &c. and the 
other to " provide for the general welfare ;" but it is the 
grant of one power, viz. " to lay and collect taxes," &c. 
— limited by the object, which is for the purpose of "pro- 
viding for the general welfare." 1 

§ 113. Taxes are of two kinds, — direct and indirect. 
Direct taxes are all burthens imposed immediately upon 
the person or estate of the citizen ; thus, a tax upon 
houses, lands, money, &c. is a direct tax : indirect taxes 
are the burdens imposed upon articles of consumption, 
and chiefly upon imported articles ; thus, the revenue, 
or duty levied upon each yard of broadcloth, or cotton 
sheeting, brought to this country from abroad, is an 
indirect tax. 

§ 114. Indirect taxes increase the price of imported 
articles, and thus act as a burden upon those who pur- 
chase them. The difference between the two modes of 
taxation is this : direct taxes act directly upon the person 
and property of the citizen, and is independent of his 
will; indirect taxes, by being imposed upon articles 
imported from foreign countries, or used in consumption^ 
leave the people at liberty to pay them or not, by using 
or not using the articles upon which they are imposed. 
Thus, a farmer cannot avoid the payment of a tax levied 
upon his land, but he may avoid the payment of the duty 
upon coffee, by not using it. And previous to the Revo- 
lution, such was the fact, as we all know, in relation to the 
duty upon tea, The people, by a patriotic impulse and 

1 Jefferson's Opinion on the Bank of the United States, 1791 ; 
Monroe's Message, May, 1822 ; Hamilton's Report, Dec. 1791;, 
9Wheaton's Rep. 199. 



THE UNITED STATES. 53 

common consent, abstained from the use of tea, and thus 
prevented the levying of the duty. 

§ 115. In general, all the necessaries of life, such as 
coarse clothing, bread, meat, fruit, wood, and iron, are 
the productions of our own country, — so that the whole 
import duty, or nearly the whole revenue of the country, 
as now levied, is a mere matter of voluntary contribution 
upon the part of each and every citizen ; hence it is that 
indirect taxes, being in a measure unfelt and voluntary, 
are comparatively popular, while direct taxes are more 
or less odious. 

§ 116. The terms imposts and duties, as now used, 
are nearly synonymous ; x but originally, the word duty 
had a general signification, as it respects taxes, of which 
imposts was a particular application. Now they are 
applied indiscriminately to the revenue obtained from 
imported articles. 

§ 117. The term excise is defined to be a duty on 
commodities, but of late it has been confined to a tax on 
domestic distilled liquors. In this sense it is a tax, not 
only on the productions of the country, but also a tax on 
the manufacture of them : it is a tax, at once, upon the 
raw material and the labour put upon it. Such a double 
duty, it is obvious, could never be imposed by the Legis- 
lature, nor borne by any people, but from a conviction 
in a large portion of the community of the disastrous in- 
fluence of spirituous liquors, and a strong desire to repress 
their use. Even with this conviction among the intelli- 
gent, an excise duty has never been imposed but in time 
of great public emergency, and then at the risk of civil 
war. In the year 1793, Congress laid an excise duty 
on distilled spirits, and appointed inspectors, officers, 
&c. to collect it. This law became so excessively odious 
to a portion of the people, that notwithstanding the 
unrivalled popularity and commanding influence of 

1 Madison's Letter on the Tariff. 
E 2 



54 CONSTITUTION OT 

General Washington, who was then President, they 
were excited, especially in the neighbourhood of Pitts- 
burgh, Pennsylvania, into open acts of violence. The 
inspectors were attacked in their houses, the mails 
robbed, the marshal resisted, and numerous other out- 
rages, amounting to open insurrection, were committed. 1 
At length, the President called out the militia, and by 
the display of superior force, and the determination to 
use it, quelled the insurgents. In this brief history, we 
see the effect of excise duties, of which the chief cause, 
next to the appetite for spirituous liquors, may be found 
in the onerous nature of a tax both upon labour and pro- 
duction. 

§ 118. But all duties, imposts, and excises must be 
uniform. In the case of Hylton vs. United States, 2 
the Supreme Court decided that a duty levied indis- 
criminately upon all carriages was not a direct tax, and 
was therefore properly laid, and uniform. Had it been 
a direct tax, it must, according to a previous provision of 
the Constitution, (§ 42), have been apportioned in pro- 
portion to the population of the several states. 

§ 119. In the case of Loughborough vs. Blake, 3 
the court decided that the power of Congress to tax 
extended over the District of Columbia, and all other 
territories ; that the power of taxation was co-extensive 
with the government, but that when exercised, direct 
taxes must be in proportion to the population. The 
court decided that Congress were not obliged to extend 
taxation to the territories, although when they did so, 
the Constitution gave a rule of assessment. 

fy 120. 2d Clause. To borrow money on the credit of 
the United Stales: 

This power has been constantly exercised, and for 
the plain reason that no state or government could 



»5 Marshall's Washington, 585-. *3 Dallas, 17L 

*5Wheaton, 317. 



THE UNITED STATES. 55 

subsist without it. Every war, especially under a fru- 
gal and economical government like ours, imposes upon 
the government the necessity for greater revenues than 
the ordinary taxes can supply ; the consequence is a 
national debt. But the same simplicity and frugality 
which keep the revenue below the lavish demands of 
war, furnish the means of speedily extinguishing the 
debts which result from it. Thus, in our country, the 
year 1816 found the nation more than 120 millions in 
debt; the year 1834, — 18 years afterward, — found it 
not only out of debt, but its statesmen actually contend- 
ing about the surplus revenue ! 

§ 121. Clause 3d. To regulate commerce with foreign 
nations and among the several states, and with the Indian 
tribes : 

§ 122. The power given in this paragraph has been 
the origin of many important legislative provisions, of 
which some have given rise to judicial decisions, and 
others to frequent and severe political discussions. In 
a very celebrated case, Gibbons vs. Ogden, 1 arising 
under the Steamboat Laws of New- York, the Supreme 
Court of the United States have solemnly decided the 
meaning of the phrase to regulate commerce. 

§ 123. The term commerce, in that decision, is 
decided to comprehend navigation, and the power to 
regulate navigation is as expressly given as if it had 
been added to the word commerce. 

§ 124. The power to regulate commerce extends to 
every species of commercial intercourse between the 
United States and foreign nations, and among the 
several states. But it does not comprehend that com- 
merce which is internal, as between man and man, and 
between different parts of the same state. It does not,, 
however, stop at the jurisdictional lines of the several 
states, but extends wherever the subject of it exists. 

§ 125. The power to regulate commerce is the 

1 9 Wheaton, 189, 193* 



56 CONSTITUTION OF 

power to prescribe the rule by which commerce is to be 
governed. 

§ 126. The power to regulate commerce extends as 
well to vessels employed in carrying passengers as to 
those in transporting goods, to vessels navigated by fire 
and steam as to those by sails. 

§ 127. The law regulating the coasting trade, in 
relation to which these decisions were made, was 
passed in February, 1793. From that day to this, 
Congress have been in the constant exercise of the 
power to regulate commerce. They have passed laws 
to regulate commerce, as such, to lay embargoes, navi- 
gation acts, &c. 

§ 128. By the Embargo Act, December, 1807, a 
prohibition was laid of exportation from the United 
States, either by land or water, of any goods or wares, 
either foreign or domestic. In the case of the United 
States against the Brigantine William, 1 this act was 
controverted, as unconstitutional : but the court decided 
that the embargo act was constitutional ; that non- 
intercourse and embargo laws are within the range of 
legislative discretion ; and that the power of Congress 
was sovereign relative to commercial intercourse. 

§ 129. Within a few years, another question has 
arisen under the power to regulate commerce. Political 
zeal and party spirit have originated an idea, which cer- 
tainly, so far as authentic history goes, never entered 
into the heads of the framers of the Constitution. This 
notion is, that a law imposing duties for the protection of 
domestic manufactures is not constitutional. It is ad- 
mitted, that any amount of imposts and duties may be 
levied upon any articles for the purposes of revenue, and 
that the protection arising from this impost, being inci- 
dental, is constitutional, — but that these same imposts 
being imposed for protection so called, are not constitu- 
tional. This is in reality a distinction without a differ* 

1 2 Hall's Law Journal, 255. 



THE UNITED STATES. 57 

ence ; for,, according to the theory itself, Congress, with- 
out transcending their powers, may levy the whole 
revenue from particular articles, and thus create not 
only a protection against, but an absolute prohibition of 
them. But, suppose the bill was enacted for protection 
merely, and let us examine briefly the principles and 
authorities applicable to it. It is neither necessary nor 
proper here to enter into a detailed argument upon the 
subject, but the matter may be stated in a few propo- 
sitions with sufficient force to make the conclusion 
irresistible. 

§ 130. The avowed objects of the Constitution, as ex- 
pressed in the preamble, are to provide for the common 
defence, and promote the general welfare ; for this pur- 
pose various means are provided, and among others the 
express power given "to lay imposts, duties, and ex- 
cises, to provide for the common defence, and promote 
the general welfare." Now, it is perfectly apparent^ 
that neither of these provisions can be carried into 
effect without such discriminating duties as will encou- 
rage and protect the domestic manufacture of the muni- 
tions of war, and of necessary clothing. 

§ 131. The power to regulate commerce includes 
every thing in relation not only to the mode of carrying 
it on, but also to the terms upon which it shall be carried 
on. 1 Those terms, therefore, may be arranged either for 
the purpose of raising revenue or protecting manu- 
factures, as suits the legislator. The government has 
a discretion, which it may exercise as it pleases. 

§ 132. The meaning of the phrase, to regulate trade, 
must be gathered from the use of it among commercial 
people, and the manner in which it was understood by 
those who used it in making and adopting the Constitu- 
tion. 2 In both these cases it was understood to include 
the encouragement of manufactures. 

1 Madison's Letter on the Tariff. 2 Ibid. 



58 CONSTITUTION OF 

§ 133. The Supreme Court is vested with power to 
decide on the constitutionality of all laws : this point has 
not been directly before them, but they may be consid- 
ered as having decided it upon principle, by the appli- 
cation of certain rules which they have laid down. 

§ 134. The court have decided 1 that the power to 
regulate commerce is the power to prescribe the rule by 
which commerce shall be governed ; 

§ 135. That, like all other powers vested in Con- 
gress, it is complete in itself, and has no other limits 
than such as are prescribed in the Constitution ; 

§ 136. That the power to regulate implies in its na- 
ture full power over the thing to be regulated. 

§ 137. Now, if Congress have power to tax all arti- 
cles in all modes (as they have, under the clause to lay 
duties, imposts, &c), and have besides the power to 
regulate commerce without limitation as to the subject 
matter, then it is impossible to avoid the conclusion, that 
they have the power to make any discrimination what- 
ever, in the duties to be levied, no matter for what purpose, 
whether of revenue ox protection, is answered thereby. 

§ 138. But if any thing were wanting to make con- 
viction perfect, it would be found in the uniform practice 
of the government, whether administered by those who 
were co-laborators in its formation, or by those who 
grew up under it from the adoption of the Constitution to 
the present day ; in the opinions, often expressed, of the 
wisest and most distinguished statesmen ; and finally, 
in the admissions of the ablest opponents of the pro- 
tective policy. 

§ 139. The power to regulate commerce is exclusive 
in the general government. 2 The full power to regu- 
late a particular subject implies the whole power, and 
leaves no residuum. A grant of a power to regulate 

1 Gibbons vs. Ogden, 9 Wheaton, 189. 

2 Brown vs. Maryland, 12 Wheaton, 419, 445, 



THE UNITED STATES. 59 

necessarily excludes the action of all others, who would 
perform the same thing. 

§ 140. The power to regulate trade and commerce 
extends to the coasting trade and fisheries, within or 
without a state, wherever it is connected with other 
states, or with foreign nations ; it extends to the regu- 
lation and government of American seamen on board of 
American ships, and to conferring privileges upon Amer- 
ican ships in domestic as well as foreign trade. 1 

§ 141. It extends also to quarantine, pilotage, and 
salvage laws ; to the construction of light-houses ; to the 
removal of obstructions in creeks, harbours, and sounds ; 
and to the establishment of ports of entry for the pur- 
poses of foreign commerce. 

§ 142. These powers have all been exercised in the 
enactment and enforcement of various laws regulating 
the collection of the revenue, the government of sea- 
men, the mode of navigation, and the improvement of 
harbours. 

§ 143. This section of the Constitution contains also 
the power, which has been often exercised, of regulat- 
ing intercourse with the Indian tribes. The Supreme 
Court have decided 2 that Congress have the exclusive 
right of pre-emption to all the Indian lands within the 
territories of the United States. This right the United 
States have constantly exercised ; neither the states nor 
any individuals are allowed to purchase lands from the 
Indians. 

§ 144. In the case of the Cherokee Nation vs. Geor- 
gia, 3 it was decided that a tribe, situated within the ter- 
ritorial limits of a state, but exercising the powers of 
government and national sovereignty, under the guaran- 
tee of the general government, is not a foreign state in 
the sense of the Constitution ; but is entitled to sue in 



1 2 Story's Coram. 518. 2 8 Wheaton, 543 ; 6 Cranch, 142. 
3 5 Peters' R. 1, 16, 17. 



60 CONSTITUTION OF 

the courts of the United States. Such a tribe is to be 
deemed politically a state, that is, a distinct political so- 
ciety, but is not a foreign state. 1 It is a domestic de- 
pendent nation, and is to be deemed in a state of pupil- 
age. Its relation to the United States is that of a ward 
to a guardian. 

§ 145. As it respects foreign nations, the Indian 
tribes within the limits of the United States are con- 
sidered as completely within the control and protection 
of the United States ; so that the interference of any 
foreign nation with those Indian tribes, or an attempt to 
seduce their good-will from the United States, would be 
considered as a cause of war. 

§ 146. 4th Clause. To establish a uniform rule of 
naturalization, and uniform laivs on the subject of bank- 
ruptcies throughout the United Staics. 

§ 147. This provision vests the power of naturaliza- 
tion exclusively in the United States. 2 In pursuance of 
this power, Congress have passed a series of laws pre- 
scribing the mode of naturalization. Of the classes of 
persons who may come under these provisions there are 
three, — 1st, Aliens of full age; 2d, Aliens, minors; 3d, 
Children of citizens born in foreign countries. 

§ 148. 1st. The laws provide 3 that any alien of full 
age shall be admitted to citizenship in the following man- 
ner. 1st. He shall declare on oath, or affirmation, be- 
fore any court of record, having common law jurisdic- 
tion, a seal and a clerk, in any state or territory, or a 
circuit or distiict court of the United States, or before 
the clerks thereof, two years at least before his admis- 
sion, that it was bona fide his intention to become a citi- 
zen of the United States, and renounce for ever all alle- 
giance to any foreign prince or state of which he may at 



1 Worcester vs. Georgia, 6 Peters, 559. 2 2 Wheaton, 259, 
269. 3 Act of April, 1802, as amended by the acts of 1804, 
1813, 1816, 1824, and 1828. 



THE UNITED STATES. 61 

4he time be a citizen or subject. 2d, That he shall, at 
the time of his application to be admitted, declare on 
oath, before the aforesaid courts, that he will support the 
Constitution of the United States, and does absolutely 
renounce and abjure all allegiance to any foreign prince 
or state whatever ; and particularly that prince or state 
whereof he was before a citizen or subject, which pro- 
ceeding shall be recorded by the clerk of the court. 
3d, That the court admitting such alien shall be satis- 
fied that he has resided within the United States the 
continued term of jive years next preceding his admission, 
without being during that time out of the United States, 
and one year at least within the state or territory where 
such court is held ; and that, during that time, he has 
behaved as a man of good moral character, attached to 
the principles of the Constitution, and well disposed to 
the good of the same, — provided the oath of the ap- 
plicant shall not be allowed to prove his residence. 
4th, That if the alien applying to be admitted shall have 
borne any hereditary title, or been of any of the orders 
of nobility in the kingdom or state whence he came, he 
shall, in addition to those requisites, expressly renounce 
his title or order of nobility, in the court to which his 
application shall be made, and it shall be recorded ; 
provided, no alien who shall be a citizen or subject of 
any country at war with the United States at the time 
of his application, shall be admitted as a citizen of the 
United States. 

§ 149. 2c?. Free white minors, 1 who have resided in 
the United States three years next preceding their arrival 
at twenty-one years, and who shall have continued to re- 
side therein till the time they may make application, may, 
after their arrival at twenty-one years of age, and after 
they shall have resided in the country Jive years, within 
the United States, including three years of their minority, 

1 Act of May, 1824. 
F 



62 CONSTITUTION OF 

be admitted without having made the declaration first re- 
quired; provided they shall make such declaration at the 
time of their admission, and shall further declare on oath, 
and prove to the satisfaction of the court, that for three 
years next preceding, it has been the bona fide intention 
of such alien to become a citizen of the United States, 
and shall otherwise comply with the laws relative to 
naturalization. 

§ 150. The children of naturalized persons, or of 
those who have become citizens previous to the passage 
of any law upon the subject, and were under twenty- 
one at the time of their parents' admission to citizen- 
ship, shall, if dwelling in the United States, be consid- 
ered citizens of the United States. 

§151. 3d. The children of those who now are or have 
been citizens of the United States shall, though born out 
of the limits and jurisdiction of the United States, be 
considered as citizens ; provided the children of those 
who have never resided within the United States shall 
not be so considered. 

§ 152. And it is further provided, 1 that if an alien 
make the declaration in the first condition, and pursue 
the other requisitions as far as may be, and die before 
he is actually naturalized, the widow and children shall 
be considered as citizens, and entitled to all the rights of 
citizens, upon taking the oaths prescribed by law. 

§ 153. An alien is, by the Common Law, 2 without 
power to hoid real estate. Several of the western 
states, as Ohio, &c, have abrogated this part of the 
common law by statute, for the encouragement of emi- 
gration. 

§ 154. The power to pass a general Bankrupt Law is, 
by this section, vested in Congress. This power was 
once exercised by Congress in April, 1800 ; but the law 
was repealed in 1803. Many efforts have been made 

1 Act of March, 1804. 2 2 Blackstone's Comra. 249, 293. 



THE UNITED STATES. 63 

since to obtain from Congress a general Bankrupt Law, 
but, in consequence of a disagreement upon the details, 
none has been passed. The several states have fre- 
quently passed Insolvent Laws ; but as another part of 
the Constitution, of which we shall speak hereafter, ren- 
ders all acts impairing the obligation of contracts void, 
there has been much doubt as to the constitutionality 
and effect of these laws. 

§ 155. The Supreme Court have now determined, by 
a series of decisions, the following" points : l 

1st. That State Insolvent Laws cannot discharge the 
obligation of antecedent contracts ; 

2d. That the power of Congress to pass Bankrupt 
Laws is not an exclusive grant ; it may, therefore, be ex- 
ercised within constitutional limits by the states ; 

3d. That a state may pass valid laws discharging the 
person of the debtor and his after-acquired property 
from debts contracted after the passing such law ; 

4th. That such a discharge is valid only between the 
citizens of the state by which the law was passed ; 

5th. That the Insolvent Law of one state does not dis- 
charge the debtor from debts which he has incurred in 
another state. 

§ 156. 5th Clause. To coin money, regulate the value 
thereof and of foreign coin, and fix the standard of 
weights and measures. 

§ 157. The power conferred by this paragraph has 
been long and efficiently exercised, so that the Ameri- 
can coinage has supplied much of the currency of the 
country, and holds a high rank among foreign nations. 
The JVLint of the United States is an office, with 
the proper officers, created by Congress in 1 792, 2 and 
has been in operation ever since. Every person may 
bring gold and silver to the mint to be coined, and if it 

1 4 Wheaton's R. 122 ; 12 Wheaton's R. 273. 2 Act of 

April, 1792. 



64 CONSTITUTION OF 

is of the standard value, is assayed and coined free of 
expense; but if below the standard, enough is retained 
to pay the expense of coinage. The coinage of the 
United States is entirely decimal, and, therefore, in prac- 
tice, more convenient than that of any other nation. 
Thus, the Spanish milled dollar is taken as the unit, 
and all smaller coin is in tenth parts of that, and all gold 
coin in tens above; as the dime is the tenth part of a 
dollar, and the eagle ten dollars. 

§158. 6th Clause. To provide for the punishment of 
counterfeiting the securities and current coin of the United 
States ; 

Congress have exercised this power by making the 
crime of counterfeiting a felony, punishable by impris- 
onment, fine, <fec. This power is consequential to the 
preceding, — that of coining money and regulating its 
value. 

§ 159. 7th Clause. To establish Post-offices and 
Post-roads ; 

The establishment of Post-offices and Post-roads 
has existed since, and before, the organization of the 
present government. Being a branch of public admin- 
istration co-existent with commerce, social intercourse, 
and the diffusion of knowledge, it has grown with the 
increase of the general prosperity, and has become, 
from small beginnings, an immense and complicated 
machinery. In 1830, the number of Post-offices was 
9000, and the number of miles in Post-roads more than 
120,000 ; and this number is constantly increasing. 

§ 180. To establish Post-roads and Post-offices, 
means simply to make any given road a post-route, and 
appoint in any given place a postmaster. The routes 
are established by act of Congress, but it is the duty of the 
postmaster-general to appoint postmasters at all such 
places as he may judge best, and expedite the mail »« 

1 Act of April, 1806. 



THE UNITED STATES. 65 

frequently,, on established routes, as the public interest 
may require. 

§ 161. The power to establish Post-offices and 
Post-roads being given, the consequential powers neces- 
sary to carry it into execution are likewise given ; as, 
for example, the power to secure the safety and speedy 
transportation of the mail. 1 Congress have accordingly 
made the robbery of the mail a. felony, and prohibited, 
under high penalties, the obstruction of the mail. Under 
this act the Supreme Court 2 have decided, that even a 
stolen horse, found in the mail stage, could not be 
seized, and that the driver could not be arrested on civil 
process in such a way as to obstruct the mail. But 
it was subsequently decided, that this was not to be 
carried so far as to endanger the public peace by inter- 
fering with criminal process. 3 Thus, a felon may be ar- 
rested in the mail stage, or the driver, if he had com- 
mitted murder. 

§ 162. Under the power to establish Post-roads has 
arisen the question of Internal Improvements. Though 
much agitated, it is not settled, and I shall give here 
merely the different authorities upon the subject, whether 
Legislative, Executive, or Judicial. 

§ 163. 1st. Of the Legislative opinions upon the sub- 
ject. By the Act of March 3d, 1803, Congress con- 
cluded a compact with the state of Ohio, .by which 
three per cent, of all the moneys derived from the sale 
of public lands within the state of Ohio were reserved 
for the construction of roads within that state. The 
consideration was, that the lands of the United States in 
that state should not be taxed. "Whether by inadver- 
tence or intention, this act clearly acknowledged the 
power of the general government to make Internal Im- 
provements ; for the appropriation was made by the 

1 Act of April, 1810. 2 3 Hall's Law Journal. 3 1 Peters* 
Rep. 390. 

F2 



66 CONSTITUTION OF 

United States, and the funds were derived from the prop- 
erty of the United States. It could be no objection to 
this reasoning that the work was to be done by the 
state ; for it is an established principle, that " he who 
acts by another, acts by himself." Neither is it an ar- 
gument to say there was a consideration ; for, " what 
one cannot do directly he cannot do indirectly." This 
was so understood by Congress, for in several subse- 
quent acts they authorized the construction of roads 
within the North-west Territory. 

§ 164. The next step taken by Congress 1 was the 
construction of the Cumberland Road. This road was 
commenced in 1806, and in a few years finished from, 
Cumberland, on the Potomac,, to Wheeling, on the Ohio. 
In 1820, Congress resumed the construction from Wheel- 
ing westward, and it is now in progress through the 
western states. This .work was undertaken on the 
ground of the compact with Ohio. By the terms of a 
compact made between that state and the United States, 
five per cent, of all the moneys arising from the sale of 
public lands within that state were to be applied to the 
making of roads " leading from the navigable waters of 
the Atlantic to the Ohio." This, however, falls within 
the same principles already stated, in reference to the 
three per cent, fund ; and as the sum drawn from the 
reserved funds was soon greatly exceeded, the work has 
since been conducted simply on the ground of internal 
improvement. 

§ 165. The next act 2 was the opening of the road 
from Athens, in Georgia, to New-Orleans, and from 
Nashville to Natchez. In 1809, the Canal of Caronde- 
let 3 was extended to the Mississippi by the general 
government. 

§ 166. In 1811, Congress directed 4 the survey and 

1 Act of March, 1806. 2 Act of April, 1806. ? Act 

af February, 1809.. * Act of December, 1811.. 



THE UNITED STATES. 67 

making of two roads, — one from the Rapids of the 
Maumee to the Western Reserve, and another from 
Sandusky to the Greenville Line. 

§ 167. By several successive acts in 1812, 1816, 1817, 
and 1818, Congress confirmed their former decisions, by 
making surveys of, and authorizing the construction of 
roads ; till it would seem that, practically, there was 
no doubt in the National Legislature upon the subject.. 
The matter has, however, been several times tested by 
the interposition of the Executive Veto. 

§ 168. A bill to set apart a portion of the bank bonus 
and dividends for the purpose of Internal Improvement 
was passed in 1817, and returned by Mr. Madison, 
who denied the power of Congress to construct roads 
and canals, or improve water-courses. The House of 
Representatives, however, re-affirmed, their power by a 
vote of sixty to fifty-six. 

§ 169. At the succeeding session, Mr. Monroe, in his 
message, also denied the constitutional power of Con- 
gress to make internal improvements. The House soon 
after passed a resolution, ninety to seventy-five, declar- 
ing that Congress, under the Constitution, had power to 
construct roads and improve water-courses. 

§ 170. From this period Internal Improvement seemed 
the settled policy of the government for several years. 
In 1822, Mr. Monroe, indeed, interposed his veto oik 
the bill providing for the Collection of Tolls on the 
Cumberland road ; but, the objection was not to the 
power of making roads, but to the Collection of Tolls 
upon it, as being inconsistent with the jurisdiction and 
sovereignty of the soil. This, however, was not deemed 
an impediment to the construction of public works, for 
Congress immediately took measures to organize a sys- 
tem of surveys and reports, in relation to such roads and 
canals as the public interest might require ; and in April, 
1824, what is called the Survey Bill became a law* 
It appropriated $30,000 for the purpose of making sm> 



68 CONSTITUTION OF 

veys of different parts of the country, and authorized 
the employment of the Engineer Corps in that service. 
Soon after the passage of this bill, the accession of a 
new administration, decidedly favourable to Internal Im- 
provement, gave the system a new impulse, and from that 
time forward Congress enacted many laws affirming 
and enlarging these powers. They subscribed a large 
amount of stock to the Ohio and Chesapeake Canal, 
to the Dismal Swamp Canal, and the Louisville and 
Portland Canal. They made appropriations for the 
improvement of numerous harbours, rivers, &c. &c, — 
for the making of Military Roads, — for the continuance 
of the Cumberland Road, and various other public 
works. A practical check was given to this system by 
President Jackson, in his Veto on the Maysville Road 
Bill, of which I shall speak hereafter. Congress, how- 
ever, remained unchanged. By the passage of the 
Harbour Bills, and numerous other items for roads and 
improvements in other bills, they have manifested a 
fixed opinion in favour of their power to construct roads 
and other public works. 

$171. The result deduced from this Legislative 
History is, that Congress have uniformly asserted, their 
•power, under the Constitution, to construct and hold, 
with the public funds, public vwrks, under the denomi- 
nation of Internal Improvements. We shall now exam- 
ine the opinion of another branch of the government. 

§ 172. 2d. Of the Executive opinions. During the 
administration of Washington and the elder Adams, the 
power of Congress in respect to Internal Improvements 
was neither exercised nor much examined, and there- 
fore no executive opinions were formally advanced.. 
Under the administration of Mr. Jefferson, we have 
already seen the compact was made with Ohio, and the 
Cumberland Road undertaken. To both these acts 
Mr. Jefferson gave his assent, and it is difficult to see in* 
what respect the works differ from other public improve.- 



THE UNITED STATES. 69 1 

ments ; yet, by his message of December 2d, 1806, he 
denied the power of Congress to make roads and im- 
prove water-courses, though he earnestly recommended 
the grant of such powers by the states. The reason 
given was, that this power was not enumerated among 
the powers of Congress. The authority of Mr. Jeffer- 
son, therefore, may be considered as decidedly against 
the power to make internal improvements, though he 
was most earnestly in favour of granting such a power 
to the government. 

§ 173. Mr. Madison, in 1796, spoke in favour of a 
resolution relative to a survey of a road from Maine to 
Georgia; yet, in 1815, in his Message to Congress* 
while strongly recommending to Congress " the great 
importance of establishing throughout our country the 
roads and canals which can best be executed under 
national authority," intimated that any defect in the con- 
stitutional power might be supplied hi the mode pro- 
vided by the Constitution. 

In 1817, Mr. Madison placed his Veto upon the bill 
providing means for the construction of roads and canals, 
and the improvement of water-courses. He denied the 
constitutional power of Congress to make such works, 
and rhus gave his judgment also in the negative. 

§ 174. In Mr. Monroe's first message to Congress, 1 
he declared his agreement with his predecessors, and 
doubt of the constitutionality of such works. After the 
passage of the Resolution of Congress ■, in 1818, affirm- 
ing the power, he is understood to have withdrawn his 
opposition, and during his administration, appropriations 
for such purposes greatly increased. In 1822, however, 
he placed his Veto 2 upon the act for the erection of Toll- 
gates and the collection of Tolls on the Cumberland 
Road. This he considered as requiring the juris- 

1 December, 1817. *May, 1822. 



70 CONSTITUTION OF 

diction and sovereignty of the soil, which the general 
government did not possess. 

§ 175. Mr. John Quincy Adams strongly recom- 
mended and encouraged Internal Improvements. During 
his administration, the system seemed to have become 
a part of the permanent policy of the country. Nu- 
merous surveys were completed, and large sums 
appropriated for various public works. 

§ 176. General Jackson, while a member of the 
Senate, is understood to have had no constitutional 
scruples upon the subject ; but, by his Veto upon the 
well-known Maysville Road Bill, 1 he gave his influence 
in the negative. In whatever manner this document 
may be judged of, during the heat of temporary party 
controversies, there can be no doubt that it contains a 
temperate and judicious review of the question, and a 
correct decision upon the particular point submitted to 
him. That point was, the propriety of constructing by 
the general government a local road entirely within one 
state. There is no doubt that if the power of making 
Internal Improvements exist in the general government, 
it must be confined to national, not local objects. 
General Jackson, however, went further than this, and 
deemed that all the power which had been uninter- 
ruptedly exercised upon this subject, viz. that of ap- 
propriating money, was insufficient and unsafe for the 
successful prosecution of national works. He regarded 
it, notwithstanding the usage was admitted, as improper 
to exercise powers not granted, and which might easily 
be conferred. 

§ 177. Since this message, the Executive influence 
has been altogether opposed to Internal Improvements, 
and they have made little progress. 

§ 178. We have now seen that the opinions of 
Presidents Jefferson, Madison, Monroe, and Jackson 

» Message 27th May, 1830. 



THE UNITED STATES. 



71 



were opposed upon constitutional grounds to the ex- 
ercise of such a power by the general government ; 
but that all of them, except the latter, were in favour of 
the measures themselves, and under all their adminis- 
trations, except also the last, many national works were 
undertaken. President Adams alone conceded both the 
theory and. practice. 

The conclusion of the whole then is, that the iveight 
of Legislative authority has been uniformly in favour of 
the power, ivhile that of Executive authority has been 
against it. 

§ 179. 3d. Of Judicial opinions we have none except 
general decisions upon the indirect powers of Congress. 

The Supreme Court decided, that a contemporary 
exposition of the Constitution practised, and acquiesced 
in for a number of years, fixes the construction of the 
Constitution, and the court will not shake or alter it} 
Also, that there is nothing in the Constitution of the 
United States which excludes incidental or implied 
powers. 2 

The two principles here cited might be considered as 
showing an inclination in the Supreme Court to sustain 
the power claimed by Congress. Yet, as it may be long 
before the question will come before that tribunal, it 
may be considered as open to discussion. 

§ 180. Clause 8th. To promote the progress of sci- 
ence and the useful arts, by securing, for limited times, 
to authors and inventors, the exclusive right to their re- 
spective writings and discoveries : 

§ 181. In England it was solemnly decided, 3 that an 
author had, by Common Law as well as by Statute, an 
exclusive right to his own works. In this country, 
Copy-rights and Patent-rights are derived from Acts of 
Congress, founded on this provision of the Constitution. 



1 1 Cranch, 299. 2 4 Wheaton, 316. 3 4 Burrows' 

Rep. 2303. 



72 CONSTITUTION OF 

§ 182. The acts 1 relative to Patents direct that 
•* Patents may be obtained for any new arid useful art, 
machine, manufacture, or composition of matter not 
known before the application." The term for which a 
Patent may be obtained is fourteen years. Such a law 
would seem to be an effectual protection to inventors 
against an infringement of their rights, yet we may see 
in the Life of Whitney 2 of how little avail it is against 
the pressing interests of society. In Georgia, no jury 
could be found to give him a verdict of damages for the 
open violation of his Patent for the Cotton Gin, — an 
invention which had doubled the value of cotton ! 

§ 183. Copy-rights were formerly secured for fourteen 
years ; now, by the A.ct of February, 1831, in every re- 
spect better than the former, the term is prolonged to 
twenty-eight years, and at the expiration of that time, he 
(or, if he be dead), his wife or children, may renew it for 
fourteen years longer. 

§ 184. Clause 9th. To constitute tribunals inferior 
to the Supreme Court : To define and punish piracies 
and felonies committed on the high seas, and offences 
against the Law of Nations : 

§ 185. In another place we shall consider what re- 
lates to the Supreme and Inferior Courts. 

By the Law of Nations, and by the Common Law, 
Piracy is defined to be — robbery on the high sea, that is, 
the same crime which, when committed on the land, is de- 
nominated robbery? 

§ 186. Felony, at Common Law, comprises every 
species of crime which occasions the forfeiture of lands 
and goods. These, under the English Law, were most 
crimes punishable with death, such as murder, forgery, 
theft, <fcc. But this does not include all offences on the 
high seas ; for example, Lord Coke says that piracy is 

1 Acts of February, 1793, and April, 1800. 2 See Silli 

man's Journal. 3 Blackst. Comrn. 71, 72. 



TflE tJNlTED STATES. ^8 

moll felony, because punishable by the civil and not the 
common law. 

§ 187. The High Seas means all the waters of the 
ocean, whether within the territorial boundaries of a 
foreign nation or of a domestic state. 1 

Between high-water mark and low-water mark, where 
the tide ebbs and flows, the Common Law and the Ad* 
miralty hold alternate jurisdiction; one upon the water 
when it is full sea, the other upon the land when it 
is ebb. 

The high seas, here defined, however, do not extend 
to creeks and inlets, but, as it respects the states, means 
that part of the ocean which washes the sea-coast, and 
is not included within any county. 

§ 188. Congress, by various enactments, have exer* 
cised the powers vested in them by this section, and 
have affixed various punishments to the crimes of trea* 
son, murder, robbery, piracy, &c. 

§ 189. Congress has power to provide for the pun* 
ishment of offences committed by persons serving on 
board a ship of war of the United States, wherever that 
ship may be ■: but Congress has not exercised that 
power in the case of a ship lying in the waters of the 
United States. 2 

§ 190. Clause 10th. To declare war, grant letters of 
marque and reprisal, and make rules concerning captures 
on land and water : 

§ 191. These powers are attributes of sovereignty ; 
they are vested in the national government, and not in 
the states. The power of declaring war is the highest 
which the government possesses, and involves directly 
the happiness and existence of the people : as it is 
called the last resort of kings, so it is certainly the last 
appeal of nations* 

1 5 Wheaton's Rep. 184, 200, 204. ^ 3 Wheaton, 33(5. 

G 



74 CONSTITUTION OF 

§ 192. To grant letters of marque and reprisal is 
but a part of the power to declare war ; for such an act 
would unquestionably produce war. 

§ 193. The power of " making rules concerning cap- 
tures on land and water," which is superadded in the 
Constitution to that of declaring war, is not confined to 
captures which are extra-territorial, but extends to rules 
respecting enemies' property found within the territory, 
and is an express grant to Congress of the power of 
confiscating enemies' property found within the territory 
at the declaration of war, as an independent power, not 
included in that of declaring war. 1 

§ 194. Clause 11th. To raise and "support armies ; 
but no appropriation of money to that purpose shall be 
for a longer term than two years : 

§ 195. The United States have always had a small 
standing army, to keep up the forts on the sea-board and 
awe the Indians. The provision preventing an appro- 
priation for a longer period than two years was for the 
obvious purpose of keeping the standing army always 
within the immediate control of the people. 

§ 196. Clause 12th. To provide and maintain a 
navy : 

This, like the provision to maintain an army, is a con- 
sequence of the general power to declare war, and is 
absolutely necessary to national existence. The United 
States have long had a respectable navy, and all the 
provisions necessary to its organization, support, and in- 
crease have been provided for by law. 

§ 197. Clause 13th. To make rules for the govern- 
ment and regulation of the land and naval forces : 

Congress have established, by law, rules and articles 
of war for the government of the army, 2 and rules and 
regulations for the government of the navy. 3 These 



1 8 Cranch, 110. 2 Act of April, 1806. 3 Act of April, 

1800. 



THE UNITED STATES. 75 

rules provide for the discipline of the service, the mode 
of trial, and the punishment for offences. The rules 
and articles of war must be read at the head of each 
corps every six months, and are to govern as well the 
militia in service as the regulars, but the militia are to 
be tried by their own officers. 

§ 198. Whatever crimes are committed on board of 
public ships of war of the United States, whether in port 
or at sea, are exclusively cognizable and punishable by 
the government of the United States. 1 The public ships 
of sovereigns, wherever they may be, are deemed to be 
extra-territorial, and enjoy the immunities from the 
local jurisdiction belonging to their sovereign. 2 

§ 199. Clause 14th. To provide for calling forth the 
militia to execute the laws of the Union, suppress insur- 
rections, and repel invasions : 

Clause 15th. To provide for organizing, arming, and 
disciplining the militia, and for governing such part of 
them as may be employed in the service of the United 
States, reserving to the states respectively the appoint- 
ment of the officers, and the authority of training the 
militia according to the discipline prescribed by Congress: 

§ 200. Upon these two provisions, and a subsequent 
one, that the President shall be commander-in-chief of 
the militia when called into actual service, rest the 
whole power of the national government over the militia. 
Upon two occasions only has the power to " call forth 
the militia to execute the laws, suppress insurrections,and 
repel invasions," been exercised, — one the insurrection 
in Pennsylvania in 1794, the other to repel the invasion 
of the enemy during the war of 1812. Some serious 
questions have arisen under this power. In consequence 
of a requisition made by President Madison on the 
governors of Massachusetts and Connecticut for their 
quotas of militia, a question arose between the general 

1 United States vs. Bevans, 3 Wheaton, 336. 2 Idem. 



76 CONSTITUTION OF 

and state governments in relation to this power. In 
that and following discussions, these questions were 
made : 

1. Who is to determine when the exigency pointed 
out by the Constitution has happened? 

2. Whether the President can place the militia under 
the command of any one but himself? 

3. Whether he can detach parts of the militia corps? 

§ 201. On the first question, the governors of Con- 
necticut, Massachusetts, and Rhode Island, with the 
Supreme Court of Massachusetts, held 1 that the govern- 
ors of the states were to judge when the exigency con- 
templated by the Constitution had happened. This 
doctrine, however, was denied by President Madison 
in his Message to Congress, and the question has since 
been solemnly settled 2 by the Supreme Court of the 
United States. It was then settled that the authority 
to decide belongs exclusively to the President. The 
act of 1795, providing for the mode of calling out the 
militia, was framed on this principle. The law con- 
templates that, in certain exigencies, orders shall be 
given to carry the powers into effect, and no person ca® 
have a right to disobey them. No provision is made 
for an appeal from, or review of, the President's opinion. 
And whenever a statute gives a discretionary power to 
any person, to be exercised by him upon his own opinion 
of certain facts, the general rule of construction is, that 
he is thereby constituted the sole and exclusive judg© 
of the existence of those facts. 3 

§ 202. The power to govern the militia, when in the 
service of the United States, is an exclusive one ; for any 
such power concurrent in other authorities would destroy 
all unity of action and command. 

^ 203. There is nothing in the Constitution to pro- 

1 Martin vs. Mott ; 12 Wheaton's Rep. 30, 31. * X Kent's 
Com. 245,, 246. 3 12 Wheaton, 19> 31,, 32* 



THE UNITED STATES. 77 

hibit a state from calling forth its own militia to assist 
the United States, when that militia is not in the 
service of the United States, to suppress insurrections 
and repel invasions. Such a concurrent exercise of 
power does not interfere with, or obstruct the exercise 
of, the powers of the Union. 

§ 204. Upon the questions whether the President can 
delegate his authority, or detach parts of the militia corps, 
different opinions have been advanced by the state and 
national authorities. Thus Connecticut and Massa- 
chusetts, during the war, asserted that he could not ; 
President Madison, that he could. The latter seems 
the general opinion, and is certainly most consonant to 
reason. 

§ 205. By the act of May, 1792, Congress provided 
for the organization, arming, and disciplining of the mili- 
tia. By that act, directions were given as to the mode 
in which the President was to give his orders ; and 
refusal or neglect to obey them was declared a public 
offence, and the mode of trial, by court-martial, was 
pointed out. In relation to this act, the Supreme Court 
have decided, 1 that the militia, when called into actual 
service, were not to be considered in that service, or as 
national militia, till they were mustered at the place of 
rendezvous ; and that until then, the state retained a right, 
concurrent with the government of the United States, to 
punish their delinquency. If the militia, when called 
into the service of the United States, refuse to obey the 
order, they remain within the military control of the 
state, and it is competent for the state to provide for try- 
ing and punishing them by a state court-martial. 

§ 206. In addition to the act of 1792, Congress have 
passed several other acts upon this subject. In February, 
1795, a law was passed calling forth the militia, in con- 
templation of the well-known Whiskey Insurrection. In 

1 Hurton vs. Moore ; 5 Wheat. Rep. L 
G2 



78 CONSTITUTION OF 

May, 1820, they passed an act providing that the system 
of discipline observed by the militia throughout the 
United States should be the same as observed by the 
regular army. 

§ 207. A court-martial that imposes a fine upon a 
jnan not liable to militia duty are trespassers, as well 
as the officer who distrains for such fine. 1 

§ 208. Clause 16. To exercise exclusive legislation in 
all cases whatsoever, over such district (not exceeding ten 
miles square) as may, by cession of particular states and 
the acceptance of Congress, become the seat of government 
of the United States, and to exercise like authority over all 
places, purchased by consent of the Legislature of the state t 
in which the same shall be, for the erection of forts, maga- 
zines, arsenals, dockyards, and other needful buildings ; 
And 

Clause 17. To make all laws which shall be necessary 
and proper for carrying into execution the foregoing 
powers, and all other powers vested by this Constitution in 
the government of the United States, or in any depart- 
ment or officer thereof. 

§ 209. In pursuance of the power to exercise ex- 
clusive jurisdiction, &c. &c, Congress, in July, 1790, 
accepted of a grant from Virginia and Maryland, of ten 
miles square, on the Potomac, for the seat of government, 
which is .the present District of Columbia. Over this 
territory Congress have exclusive jurisdiction, and exer- 
cise all legislative powers. 

§ 210. The jurisdiction over various other sites, as 
West Point, &c, has been granted by the Legislatures 
of the respective states in which they lie, for military 
and naval purposes. 

§ 211. The power to exercise exclusive jurisdiction 
includes the power to tax. 2 

§ 212. Congress have the power of general as well 

1 3 Cranch, 331. * 5 Wheaton's Rep. 317. 



THE UNITED STATES. 79 

as local jurisdiction, in reference to acts committed 
within that jurisdiction. 1 

§ 213. The states cannot take cognizance of any acts 
done in the ceded place after the cession ; and, on the 
other hand, the inhabitants of those places cease to be 
inhabitants of the states, and can no longer exercise any- 
political rights under the laws of the state. 2 

But there is commonly reserved by the states a right 
of executing criminal process within the limits of ceded 
places, and this may be exercised in perfect consistency 
with the right of jurisdiction on the part of the United 
States. 

$ 214. The clause giving Congress power to make 
all laws which shall be necessary and proper to carry 
the foregoing into execution, has given rise to more 
diversity of sentiment, discussion, and controversy than 
any other in the Constitution. The reason is obvious ; 
about the direct provisions of that instrument men of 
ordinary comprehension could have but little difference 
of opinion ; but as to what is necessary and proper, dif- 
ferent men might form very different judgments : so it 
happened ; the Constitution had scarcely gone into 
operation under the administration of Washington, when 
a radical difference of opinion arose, in relation to the 
charter of the United States Bank. 

§ 215. In 1791, the Secretary of the Treasury recom- 
mended the establishment of a National Bank, as neces- 
sary to the proper administration of the financial concerns 
of the nation. A bill for that purpose was introduced 
into the House of Representatives, and warmly opposed 
on constitutional grounds. Mr. Giles, Mr. Madison, 
and Mr. Jackson were among the opponents of the 
measure, and Mr. Ames, Mr. Boudinot, and Mr. Gerry 
among its advocates. The former denied its consti- 



1 2 Kent's Comm. 403 ; 6 Wheaton, 426. * 3 Story's 

Comm. 103 ; 8 Mapach. 72. 



80 CONSTITUTION OF 

tutionality, on the ground that. Congress could not exer- 
cise any powers not expressly granted, — that no power 
was anywhere given to charter a bank, — -and that, if 
such implied powers were exercised, there would be no 
limits to the powers of the general government. 1 Their 
opponents contended that Congress had power to pass 
all laws necessary and proper to effect the ends proposed 
by the Constitution, — that, in a confused state of the 
general currency, such a bank was necessary to the 
power of levying and collecting taxes, — and that it was 
implied in the power to borrow money, which also includes 
the power to lend, and that without the exercise of im- 
plied powers, the government could do nothing. After 
much debate, the bill passed 2 both Houses of Congress. 
The President (Washington), on receiving the bill, called 
a cabinet council, in which it was again debated. The 
Secretary of State (Mr. Jefferson) and the Attorney- 
general denied its constitutionality, while the Secre- 
taries of the Treasury and War (Hamilton and Knox) 
agreed with the majorities in Congress. The President,, 
after deliberation, gave it his signature, and the weight 
of his favourable judgment. 

§ 216. In 1811, the charter of the United States 
Bank expired, and it was not rechartered. In the debate 
upon the question of its constitutionality, it was advo- 
cated by Mr. Crawford, and opposed by Messrs. Clay 
and P. B. Porter, upon the same grounds as it had 
formerly been advocated and opposed by Messrs. Ames- 
and Madison. 3 

§ 217. In 1816, a new bank was chartered, with a 
much larger capital. The currency of the country was 
then in a very depreciated and bankrupt condition. The 
effect of the establishment of the bank was to restore a 



1 Elliott's Debates, vol. 4. 2 Kent's Comm. vol. 1, p. 234. 

3 4 Elliott's Debates, 268, 269.. 



THE UNITED STATES. 81 

healthy action to the money market, and resuscitate 
credit. 

§ 218. In 1832, in anticipation of the expiration of the 
charter in 1836, an application was made for its renewal, 
and the bill passed both Houses of Congress, but was 
rejected by the interposition of the Executive Veto, by 
President Jackson. 1 

§ 219. The action of the Supreme Court upon the 
subject has been direct and distinct. In the case of 
McCullough vs. State of Maryland, 2 that tribunal de- 
cided, — 

1st, That Congress has power to incorporate a 
Bank. 

2d, That there is nothing in the Constitution which 
excludes incidental or implied powers ; and that if the 
end be within the scope of the Constitution, all the 
means which are appropriate, and are adapted to the 
end, and not prohibited, may be constitutionally em- 
ployed to carry it into effect. 

3d, That the Bank of the United States has a consti- 
tutional right to establish offices of discount and deposite 
within the states. 

4th, That the states cannot tax the branches : they 
have no right to tax any of the constitutional means used 
by the government to effect constitutional ends. 

5th, That the last rule does not extend to any of the 
real property held by the bank in particular states, nor 
to the proprietary interests of any citizen of that state in 
the bank. 

§ 220. In the case of Osborne vs. Bank of the United 
States, 3 the court decided, 6th, That the bank may sue 
in the Federal Courts. 

§ 221. These several decisions gave validity to the 
charter, and the acts of the United States Bank, so 

1 Journals of Congress, 1833* * 4 Wheaton's Rep. 316* 

3 9 Wheaton, 733. 



82 CONSTITUTION OF 

far as its constitutionality could be established by ju- 
dicial authority, it was so. The authorities upon this 
subject stand thus : — Congress passed acts in its favour 
in 1791, 1816, and 1832. On the other hand, in 1811, 
they rejected a bill for its recharter. Of the Executive, 
Presidents Washington, Adams, Madison, and J. Q. 
Adams approved of it ; President Jackson alone dis- 
approved. The supreme judicial tribunal of the Union 
has given a solemn decision in its favour. The consti- 
tutionality of a National Bank is therefore settled, as far 
as it can be, by decision, precedent, and authority. The 
expediency of such an institution may at any time be 
questioned by the representatives of the people, and so, 
as a matter of argument or theory, may its constitution- 
ality, simply because all things are open to discussion 
at the ultimate tribunal of public opinion; but the 
existence of the bank being once supposed, nothing can 
shake its validity while the decisions of the Supreme 
Court remain unimpaired and the Constitution un- 
violated. 

§ 222. Another incidental power claimed and exer- 
cised by the government is to create a priority of pay- 
ment in their favour, in case of the death or insolvency 
of the debtor. Congress, by their acts of 1789, 1790, 
1792, 1797, and 1799, gave this priority of payment 
over private creditors, in cases of insolvency, and the 
distribution of the estates of deceased debtors. 1 In the 
case of Fisher vs. Blight, 2 the power thus vested in the 
government by act of Congress was declared to be 
constitutional, and coming within the legitimate scope 
of means adapted to an end which is constitutional. 
The government must pay the debts of the Union, and 
therefore is vested with the most eligible means of 
doing it, 

$ 223. The principle is, that the government of the 

1 1 Kent's Comm. 230. * 2 Craneh, 358. 






THE UNITED STATES. 83 

United States are 'preferred creditors to citizens, or even 
to states ; but no lien is created by this preference ; a 
prior bona fide conveyance is valid. The same prin- 
ciple came up and received a further exposition in 
several other cases. 1 

§ 224. The limits of this priority is thus defined : 

1. It exists in the case of the death of the debtor 
without sufficient assets. 

2. In the case of bankruptcy, or legal insolvency, 
manifested by some act pursuant to law. 

3. In case of the voluntary assignment, by the in- 
solvent, of all his property to pay his debts. 

4. In case of an absent, concealed, or absconding 
debtor, whose effects are attached by process of law. 
This prerogative of the United States must be strictly 
construed, for it is in derogation of the rights of creditors. 

§ 225. The United States have likewise, by impli- 
cation? the right of suing in their own courts ; and suits 
may be brought in the name of the United States, or of 
any artificial person, as the Postmaster-general, for 
their benefit. 3 

§ 226. Another exercise of implied power by the 
government is found in the acquisition of Louisiana and 
Florida by treaty. No provision is made in the Con- 
stitution for acquiring foreign territory ; and even in the 
opinion of President Jefferson, there was no consti- 
tutional power to make the treaty for the acquisition of 
Louisiana. The President and Congress, however, 
approved the act, and the nation acquiesced. 4 This 
power is, however, an incident of sovereignty. 

§ 227. Another exercise of implied authority was the 
passage of the celebrated Alien and Sedition Laws. 5 
The first gave the President the power to order out of 
the country such aliens as he should deem dangerous to 

1 3 Cranch, 73 ; 5 Id. 289 ; 8 Cranch, 431 ; 2 Wheaton, 396. 
* 1 Kent's Comm. 233. 3 3 Story's Comm. 155. 4 3 Story's 
Comm. 162; 4 Elliott's Debates, 255. 5 Alien and Sedition 

Acts, 1798. 



84 CONSTITUTION OF 

the peace and safety of the country ; and the second 
made it a public crime for persons to combine and con* 
spire together, with intent to oppose any of the measures 
of the United States, or to write, print, or publish, or to 
disseminate any false, scandalous, and malicious writ- 
ings against the government of the United States, Con- 
gress, or the President. These acts soon expired by 
their own limitations, and never received a judicial 
sanction. They excited general odium, and have not 
been revived. 

SECTION IX. 

§228. 1st Clause. The migration or importation of 
such persons as any of the states now existing shall 
think proper to admit, shall not be prohibited by the 
Congress prior to the year one thousand eight hundred 
and eight; but a tax or duty may be imposed on such 
importation, not exceeding ten dollars for each person. 

§ 229. The persons here spoken of were slaves, and 
the effect of this clause was to permit the slave-trade 
till 1808. After that time arrived, Congress prohibited 
it in every direction, and affixed to it the penalties of 
piracy. 

§ 230. The privilege of the writ of Habeas Corpus 
shall not be suspended, unless when in cases of rebel- 
lion or invasion the public ^safety may require it. 

§ 231. The term Habeas Corpus is a Latin phrase, 
signifying " You may have the body." The Writ of 
Habeas Corpus is a judicial writ, gtantable by any 
Court of Record or judge thereof, and commands the 
sheriff, or other officer named in it, to have the body, 
and bring it before said judge, or court. The object of 
the writ is, by bringing a person, confined by any means 
whatever, before a competent authority, to have his con- 
finement, and the cause of it, investigated ; and if it be 
not strictly legal, to discharge him. 1 The writ is grant- 

1 1 Blackstone's Comm. 



THE UNITED STATES. 85 

able upon the application of any person whomsoever^ upon 
behalf of the prisoner, and is the only mode by which a 
person illegally detained may at once obtain his liberty. 
The privilege of the writ of Habeas Corpus is, therefore, 
an invaluable privilege, and is a part of the essence of 
liberty inserted in the Constitution, where it can neither 
be mistaken, nor evaded. 

§ 232. Our writ of Habeas Corpus is derived from 
the English Statute of the 31st Charles II. which was 
passed in consequence of frequent invasions of the per- 
sonal rights and liberties of the citizen during the reign 
of Charles I. 

§ 233. The writ may be suspended in case of rebellion 
or invasion ; yet no suspension has ever yet taken place. 
An attempt to suspend it was made during the adminis- 
tration of Mr. Jefferson, on the occasion of Burr's con- 
spiracy, but it failed in the House of Representatives by 
a large majority. 1 

§ 234. 3d Clause. No Bill of Attainder, or Ex Post 
Facto law shall be (passed. 

The terms Bill of Attainder and Ex Post Facto have 
already been defined. 2 The very definition of these 
explains the meaning of the clause in the Constitution. 
The former, by which judgment should be passed and 
punishment inflicted upon the citizen without trial, and 
the latter which makes an act criminal which was not 
criminal when committed, were obviously inconsistent 
with any thing like justice to, or liberty in, the citizen. 
They were, therefore, expressly prohibited. 

§ 235. 4th Clause. No capitation or other direct tax 
shall be laid, unless in proportion to the census or enu- 
meration herein before directed to be taken. 

This clause is nearly the same with a part of the 
third clause of the 2d Section, 1st Article. The only 

1 1 Senate Journal, 1807 ; Journal of House of Representa- 
tives, 1807. 2 Definitions, 28 .and 29.. 
H 



86 CONSTITUTION OF 

difference is the insertion of the word capitation,-— but 
this, by the following words, or other direct tax, is evi- 
dently included under the head of direct taxes. The 
meaning of both clauses then is, that direct taxes, as 
well as representation, should be in proportion to the 
census in each state, — as directed to be taken in the 2d 
Section. 

§ 236. 5th Clause. No tax or duty shall be laid on 
articles exported from any state. No preference shall 
be given by any regulation of commerce or revenue to 
the ports of one state over those of another ; nor shall 
vessels bound to or from one state, be obliged to enter, 
clear, or pay duties in another. 

These prohibitions explain themselves so clearly, as 
to require little exposition by commentary or authority. 
The first clause, preventing duties upon exported articles, 
is rendered necessary by the fact, that without it, the 
agriculture and commerce of some states might, at any 
time, be destroyed by such duties. Some states, as 
South Carolina and Alabama, derive their whole wealth 
from the exportation of particular articles, and others 
again, as Virginia, and North-Carolina, and Maine, a 
great part of it : so that by means of such duties the 
government might at any time make the most odious 
distinctions among the states ; nor would it derive any 
advantage to itself, for duties upon exports can at no 
time be advantageous, for the obvious reason that it is 
by such means only a nation is enabled to procure 
either the money or produce of other nations. 

It is also forbidden to give any preference to the ports 
of one state over those of another, or to oblige vessels 
bound from one state to enter, clear, or pay duties in 
another. The reason of this is yet more clear than that 
of the other. If the reverse of this were true, and such 
preference was allowed, and such duties imposed on 
vessels, it is plain the states would be in the relation of 
foreign states to each other. There would be no 



THE UNITED STATES. 87 

reciprocity of interests between them, and the unity of 
the government would be destroyed. 

§ 237. 6th Clause. No money shall be drawn from the 
treasury, but in consequence of appropriations made by 
law ; and a regular statement and account of the receipt 
and expenditures of all public money shall be published 
from time to time. 

The object of this provision was, 

1st, To place the public moneys beyond the reach of 
the executive : however limited the powers of the ex- 
ecutive in other respects, it is obvious that if he has 
control of the purse, he would be unlimited in the most 
essential attribute of power. It is, therefore, wisely 
provided, that the people, who alone bear the burthens 
of taxation, should, through their representatives, alone 
have the power of appropriating the resulting revenue. 
The administrations of General Washington and Mr. 
Jefferson were minutely strict in the observance of this 
injunction of the Constitution; but many instances 
might be cited since their time, in which money had 
been applied to objects different from those to which it 
had been specifically appropriated. 

§ 238. 2d, The other part of this clause, requiring a 
strict account of receipts and expenditures, was made 
to ensure fidelity and accuracy in the disbursement of 
public moneys. In the treasury department, as will be 
seen hereafter, various checks and balances, in respect 
to the transfer of money from the treasury, have been 
devised. 

§ 239. 7th Clause. No title of nobility shall be grant* 
ed by the United States, and no person holding any office 
of prof t or trust under them shall, without the consent 
of Congress, accept of any present, emolument, office, or 
title of any hind whatever from any king, prince, or 
foreign state. 

§ 240. The first clause, in reference to titles of 
nobility, is the constitutional barrier against those odious 



88 CONSTITUTION OP 

personal distinctions which arise from, and original© 
aristocracies in other countries. 

The second clause, in reference to offices and titles 
from foreign powers, is made as a check against the 
corruption of the officers , and citizens of this govern* 
ment by the princes and ministers of foreign states. 

section x. 

§ 241. Clause 1st. No state shall enter into any 
treaty \ alliance, or confederation; grant letters of 
marque and reprisal ; coin money ; emit bills of credit ; 
make any thing but gold and silver coin a tender in 
payment of debts ; pass any bill of attainder, ex post 
facto law, or law impairing the obligation of contracts ; 
or grant any title of nobility. 

§ 242. The power to enter into any treaty, alliance, 
or confederation, is one of the most important attributes 
of national sovereignty : when the states parted with it, 
they parted with one of those characteristics which 
made them independent as it respects each other. This 
•hould be borne in mind, as it will be seen in the end 
that they parted with them all, and thus divested 
themselves of all that national sovereignty, which in 
modern times is the sole foundation of the strange 
and fanciful theories put forth under the name of state 
rights. 

This right to make separate treaties and alliances 
was yielded up by the old articles of confederation ; for 
it was perfectly plain and palpable that the states could 
not retain it and form one united nation : the latter was 
their object, and they yielded the former. 

§ 243. Letters of Marque and Reprisal are a com- 
mission from the sovereign authority to a citizen or sub- 
ject to make reprisals on the vessels or property of for- 
eign nations who have injured the one granting them. 1 

* Vattel, book 2d, chap. 18th, section 346. 



THE UNITED STATES. 89 

The right of issuing these is prohibited to the several 
states. It lies in the government of the Union. The 
reason of this also is obvious. Letters of Marque 1 are 
merely introductions to war ; and if one state had the 
right to issue them independent of the rest, all the others 
might immediately be involved in war by the instrument- 
ality of that one. It will be remarked, that this right 
again is, by the definition, an attribute of national sove- 
reignty, and is therefore taken from the states and vested 
in the government of the nation. 

§ 244. The right of coining money is also a right 2 of 
sovereignty, and is vested in the general government. 
If the right of coinage was vested in the several states, 
then there would be no uniformity in the standard of 
value, and spurious coin might be circulated. 

§ 245. The next prohibition is that against issuing 
"Bills of Credit." What is a Bill of Credit? A Bill 
of Credit 3 is defined to be paper intended to circulate 
through the community for its ordinary purposes, as 
money, which paper is redeemable at a future day. 

§ 246. Is it necessary to constitute a Bill of Credit, 
that it should be made a legal tender 1 In the case of 
Craig vs. the state of Missouri,* the Supreme Court 
decided that it was not necessary that they should be 
made a legal tender in order to constitute them a Bill 
of Credit. In that case the state of Missouri made 
loans on certain certificates, issued by the Auditor and 
Treasurer of the state, of various denominations, and 
which were made receivable at the treasury in pay- 
ment of taxes and debts, and by public officers in pay- 
ment of their salaries. They bore interest, and were 
redeemable by the state. Such certificates were de- 



1 3 Story's Comm. 219. 2 Vattel, book 1, chap. 10th, sect. 
106, 107. 3 3 story's Comm. 227. 4 4 Peters' Supreme 

Court Reports, 410. 

H2 



90 CONSTITUTION OF 

cided by the court to be Bills of Credit, and as such 
unconstitutional. 

§ 247. The object of the prohibition was to prevent 
the flood of depreciated currency which had so embar- 
rassed the states during and subsequent to the revolu- 
tionary war. It is plain that without this and the ac- 
companying clauses in relation to coins and currency, 
there could be no fixed standard of value, and commerce 
and property would be constantly exposed to all the 
hazards of an uncertain and fluctuating currency. 

§ 248. The states are also forbidden to make any 
thing but gold and silver coin a legal tender in payment 
of debts. If they could have made any thing else a 
good tender, there is no species of depreciated currency 
which might not be paid for debts, and the difficulties, 
dishonesty, and bankruptcies attendant upon such a 
state of things will be easily understood. Any thing 
may be borne in civil society with more ease than that 
which interrupts the regular course of business, ob- 
structs the due administration of justice, and prevents 
the just payment of debts. The emission of Bills of 
Credit, and the making any thing but coin a legal ten- 
der by the states, would produce all these mischiefs. 
During the revolution, 1 and both subsequent and ante- 
rior to it, the resort to such means had reduced public 
credit to utter contempt, and ruined thousands of honest 
and industrious citizens. It was the recent experience of 
these evils, and the inconsistency of such powers in the 
states with the existence cf a national government, 
which prompted the prohibitions we have just recited. 

§ 249. It is prohibited to the states, as well as to the 
general government, to pass any bills of attainder or 
ex post facto laws. The reason is the same. The 
same injustice would be worked in either case. Such 

1 2 Pitkin's Civil History, p. 156, 157. 



THE UNITED STATES. 91 

laws, at all times unjust and inexpedient, are peculiarly 
so in a country where the whole basis of the govern- 
ment is right and justice. 

§ 250. The states cannot impair the obligation of 
contracts. This is one of the most important provisions 
of the Constitution, and has already occasioned much 
discussion, and been illustrated by several judicial 
decisions. 

§ 251. The first inquiry is, what is a contract? A 
contract is an agreement 1 to do or not to do a particular 
thing. It must be made between two or more persons. 2 

§ 252. Contracts may be either executory or exe- 
cuted. 3 

An executory contract is one in which a party binds 
himself to do or not to do something hereafter. 4 Thus, 
if two men agree to exchange horses next week, or one 
of them agrees to do work to-morrow, and the other to 
pay money for it, these contracts are executory, because 
they are to be performed at a future time. 

§ 253. But, a contract executed is one in which the 
act to be done is performed at once. As, if two men 
agree to exchange horses now, and do it on the spot, or 
one agrees to convey land, and makes and delivers the 
deed on the spot, such contracts are executed, because 
the act required to be done is done at once. 

§ 254. A grant and a contract executed are the same 
thing. 4 A contract executed conveys a thing in posses- 
sion. A contract executory conveys a thing in action. 

§ 255. Contracts are also express or implied. 5 Ex- 
press contracts are those of which the terms are ex- 
pressed in the agreement; implied contracts are those 
which are necessarily inferred from the nature of the 
agreement. An agreement that I shall pay so much for 

^Blackst. Comm. 443. Hdem; 3 Story's Comm. 241. 
8 Idem. 4 4 Wheaton, 197 ; 12 Wheaton, 256. * 2 Blaekst. 
Comm. 443. 



92 CONSTITUTION OF 

an ox is an express contract. If a man work for me, 
for my benefit, reason, justice, and the law all imply a 
contract that I shall pay him for it. Both these kinds 
of contracts are included in the general words of the 
Constitution. 

§ 256. The Supreme Court have decided, that a con- 
tract and a compact are one and the same thing. 1 

§ 257. A.s the term contract in the Constitution is not 
limited, it signifies both contracts executed and execu- 
tory. A grant, therefore, is such a contract as cannot 
be impaired by the states. Such was the decision in 
Fletcher vs. Peck. 2 There the state of Georgia had 
granted away certain lands to Peck, who had conveyed 
them to Fletcher for a valuable consideration ; subse- 
quent to which the state of Georgia cancelled their 
grant to Peck. Fletcher sued on the covenant of war- 
rantee, and the court held that the law cancelling the 
grant was unconstitutional, because impairing a con- 
tract, which had already vested in Fletcher a right to the 
land. 

§ 258. The next inquiry is, what is the obligation 
of contracts ? There are two kinds of obligations to 
contracts, — moral and legal. The obligation contem- 
plated by the Constitution is a legal obligation : 3 it is 
one arising under civil laws; for a moral obligation 
cannot be impaired or enforced by human laws. The 
obligation, then, meant by the Constitution, must be one 
which arises either from the enactments of a state, or 
can be influenced by those enactments. If, then, a con- 
tract is, by the laws of the place where it is made, ille- 
gal and void, that contract has no civil obligation, and 
no action can arise upon it. 4 When it arises from civil 
laws, and is not by these laws illegal and void, then it is 
such an obligation as may be impaired, and consequently 

1 6 Cranch, 136. 2 Idem. 3 Ogden vs. Saunders, 

12 Wheaton, 257. * 3 Story'* Coram. 245. 



THE UNITED STATES. 93 

such a one as comes within the scope of the Consti- 
tution. 

§ 259. The obligation, therefore, must be a civil one, 
and it must be valid according to the municipal law. It 
cannot then subsist contrary to the positive law. But 
may it exist independently of it 1 May it exist without 
a remedy 1 Thus, if two persons make a contract of a 
kind which, though by the laws of the state it is per- 
fectly valid to make, yet by the laws of the state can- 
not be enforced, has that contract an obligation within 
the meaning of the Constitution 1 If it has, what is it ? 
The only obligation which it would seem to have is a 
moral one. That undoubtedly it has. But a moral 
obligation, it is conceded on all hands, cannot be im- 
paired, and consequently is not the obligation meant. 

§ 260. On this point there is great diversity of opinion. 
It is stated on high authority 1 that the obligation may 
exist independently of positive law, and be perfect with- 
out a remedy. The examples given, however, do not 
appear to confirm the principle laid down. Thus it is 
said, 2 that a state may have taken away " imprison- 
ment for debt, and the debtor may have no property ; 
but still the right of the creditor remains, and he may 
enforce it against the future property of the debtor. So 
a debtor may die without leaving any known estate, or 
without any known representative. In such cases we 
should not say that the right of the creditor was gone, 
but only there was nothing on which it could presently 
operate. But, suppose an administrator should be ap- 
pointed, and property in contingency should fall in, the 
right might then be enforced to the extent of the exist- 
ing means." These examples are cited by the learned 
commentator to show that right may exist without a 
remedy. With due deference to an opinion which is at 
once authoritative and respected, it is thought that he 

1 3 Story's Comra. 247. 2 Idem. 



94 CONSTITUTION OF 

has, in these examples, manifestly confused the remedy 
given by the law, with the object upon which that rem- 
edy acts. What is a remedy at law 1 We are told by 
an authority 1 at least as high as the one above cited, 
that " the law consists of several parts, one declaratory, 
whereby the rights and wrongs are clearly classified 
and laid down ; another directory, whereby the subject 
is instructed to observe these rights, and abstain from 
these wrongs ; a third remedial, whereby a method is 
pointed out to recover his rights, or redress his wrongs." 
§ 261. Here the remedy in law is defined to be the 
method whereby a man may recover his rights or re- 
dress his wrongs. Now, in the example first cited 
above, of a debt, the remedy, or the method given by 
law is, first the action of debt, next the judgment upon 
that action, and lastly the execution under that judg- 
ment ; now the person or property of the debtor con- 
stitutes the object upon which that remedy acts : both 
may be out of the reach of the remedy, and yet the rem- 
edy exist, and be perfect at law. It is not perfect in its 
consequences, merely because other circumstances, dis- 
connected from the remedy, have prevented that remedy 
from attaching to the object. The remedy in the ex- 
ample above stated attaches to the property ; that prop- 
erty, by one of the conditions of human life, whether 
poverty or misfortune, does not exist. Here then the 
right to a remedy is perfect : the remedy itself, viz. 
action, judgment, and execution is perfect ; but the object 
upon which the remedy is to attach is out of reach. 
The case is the same in the second example, of an in- 
testate dying without an estate or representative. The 
municipal laws of almost every civilized state either re- 
quire that the Probate Court should appoint an adminis- 
trator, or give power to the creditor to have one ap- 
pointed. The administrator being appointed, the sec- 

1 1 Blackst. Comm. 53, 54. 



THE UNITED STATES. 95 

ond example is precisely the same as the first : the ad- 
ministrator, as the representative of the intestate, is the 
debtor, and the right, the remedy, and the object the 
same as in the other case. The remedy here spoken of 
is the remedy at law. The circumstance of the exist- 
ence of property or not, on which the remedy can at- 
tach, is one which constitutes no fart of the remedy at 
law ; for it is obviously one which no human law can 
regulate. If human intelligence could have devised a 
means by which the debtor should always have prop- 
erty to answer the demands of his creditor, it would be 
an act of wisdom which never would have been neg- 
lected. We may conclude, then, that if a right can 
exist without a remedy to enforce it, these are not ex- 
amples of it. Are there any other examples, either 
real or imaginary, by which such a principle can be 
illustrated 1 

§ 262. The meaning of the term obligation always 
implies a power to enforce it. To oblige is to compel* 
According to Justice Blackstone, 1 the strict sense of ob- 
ligation is such a constraint as makes it impossible for a 
man to act otherwise. 

§ 263. Civil obligation, then, consists in the remedial 
power of enforcement. This seems to have been the 
opinion of several eminent judges in the celebrated case 
of Ogden vs. Saunders. 2 In that decision the judges 
gave their opinions seriatim ; and in respect to the obli- 
gation of contracts, as well as several other points, were 
widely different in their judgments. These questions 
are, therefore, far from being settled, although the de- 
cision upon the facts of that case is doubtless permanent 
law. 

§ 264. Justice Washington said, that " the obligation 
of a contract is the law which binds the parties to per- 
form their agreement' 1 While he admitted that the 

I " 1 Blackst. Comm. 57. * 12 Wheaton, 260. 



98 CONSTITUTION OF 

common law of nations, or the moral law, might form a 
part of the obligation of a contract, he insisted that this 
law is to be taken in strict subordination to the munici- 
pal law of the land where the contract is made or is to 
be executed. 

§ 265. Justice Thompson said, "for it is the law 
which creates the obligation, and whenever, therefore, the 
lex loci provides for the dissolution of the contract in 
any prescribed mode, the parties are presumed to have 
acted subject to such contingency." 

§266. Justice Trimble said, "it maybe fairly con- 
cluded, that the obligation of the contract consists in the 
power and efficacy of the law, which applies to and en- 
forces performance of a contract, or the payment of an 
equivalent for non-performance. The obligation does 
not inhere and subsist in the contract itself, proprio 
vigore, but in the law applicable to the contract. This 
is the sense, I think, in which the Constitution uses the 
term obligation." 1 

§ 267. Chief Justice Marshall then said, 2 " obligation 
and remedy then are not identical. They originate at, 
and are derived from, different sources ; — it would seem 
to follow that law might act in the remedy without act- 
ing on the obligation." 

Enough of these dicta have been cited to show, that 
while the majority of the court agreed in the decision 
which was made, the individual judges held very differ- 
ent opinions upon the main question, the obligation of 
contracts. 

§ 268. The next great question in respect to the im- 
pairing the obligation of contracts, arose in respect to 
the Insolvent Laws of the several states. The princi- 
pal cases upon this point are those of Sturges vs. 
Crownimhield ; 3 McMillan vs. M'Niell,' 1 and the case 

i 12 Wheaton, 318. 2 Idem. 350. 3 4 Wheaton, 122. 

* Idem. 209. 



THE UNITED STATES. 97 

just cited> of Ogden vs. Saunders. The substance of 
these decisions has already been given in another 
place. 1 

§ 269. The next decision upon this subject was in 
regard to grants. In the case of Terrett vs. Taylor, 2 
the Supreme Court decided, that a legislative grant, 
competently made, vested an indefeasible and irrevoca- 
ble title. A state cannot revoke what it has once 
granted away ; nor can the Legislature repeal statutes 
creating private corporations, and divest the rights 
under them, without the consent or default of the cor- 
porators. 

§ 270. One of the most important cases upon the 
subject is that of Dartmouth College vs. Woodward. 3 
A charter was granted by the British crown in 1769 to 
the Trustees of Dartmouth College, who acted under 
it, established the college, and acquired property. The 
Legislature of New-Hampshire made material altera- 
tions in the charter, transferred the government of the 
college to the government of the state, and made the 
will of the donors subservient to their own. 4 The Su- 
preme Court decided that such a charter was a con- 
tract within the meaning of the Constitution ; that the 
college was a private institution, not liable to the control 
of the Legislature ; and that, therefore, the act of the 
Legislature was an act impairing the obligation of con- 
tracts, and void. The court said, that charters of an 
eleemosynary kind, for the benefit of religion, educa- 
tion, or charity, administered by trustees, was within the 
purview of the Constitution ; and that rights acquired 
under them were vested and protected by it. No 
doubt such is the clear dictate of reason ; and such in- 
stitutions, if any, ought to be protected from the ruth- 
less hands that are too often laid upon them. 

^age 95. 2 9 Cranch, 43. 3 4 Wheaton, [518. 

* I Kent's Comm. 390. 



98 CONSTITUTION OF 

§ 271. As the prohibition in relation to ex post facto 
laws is confined to retrospective criminal laws, — and 
as there is a class of retrospective laws which are not 
criminal, — this last class is restricted only by the prohibi- 
tion against the impairing the obligation of contracts, and 
there is therefore a large class of retrospective laws 
which it is constitutional for the states to pass. Thus, 
a law abolishing imprisonment for debt, as well as to 
past as to future contracts, may be constitutionally 
passed by the state legislatures. 1 All retrospective laws 
are, however, unjust and impolitic ; for they destroy the 
relation of circumstances under which the parties upon 
whom the law acts stood at the time they made the con- 
tract, or performed the act in question. 

The last prohibition of this clause is, that the 
state shall grant no title of nobility. The reason of 
this is the same as that in regard to the national gov- 
ernment : it was an exclusion of every thing like no- 
bility and aristocracy. 

§ 272. Clause 2d. No state shall, without the consent 
of Congress, lay any imposts or duties on imports or ex- 
ports, except what may be absolutely necessary for exe- 
cuting its inspection laws ; and the nett produce of all 
duties and imposts laid by any state on imports and ex- 
ports, shall be for the use of the Treasury of the United 
States ; and all such laws shall be subject to the revision 
and control of the Congress. No state shall, without 
the consent of Congress, lay any duty on tonnage, keep 
troops or ships of war in time of peace, enter into any 
agreement or compact with another state or with a for- 
eign power, or engage in war unless actually invaded, 
or in such imminent danger as will not admit of delay. 

§ 273. The Constitution had already restricted Con- 
gress in the power to lay taxes, by requiring that direct 
taxes should be in proportion to the census, and indirect 

1 2 Peters' Supreme Court Rep. 870. 



THE UNITED STATES. 99 

taxes uniform; that no duties should be laid on exports, 
and no preference given to the commerce of one state 
over another. If such restrictions were found neces- 
sary for the general government, much more were they 
for the several states, who, by local regulations, were at 
all times liable to collision, and might destroy the com- 
merce of each other. In fact, the revenue from com- 
merce is another attribute of national sovereignty, and 
could safely be trusted only to that body in whom the 
national sovereignty resided, and to whom was in- 
trusted the national defence and the general welfare. 
Sufficient power over internal commerce is left to the 
states, with the consent of Congress, to execute their 
inspection laivs, — all the rest is taken away. 

§ 274. Inspection laws are not strictly regulations of 
commerce, though they may have an influence upon it. 1 
The object of inspection laws is to improve the quality 
of articles produced in the country, and fit them for use 
and exportation. 

§ 275. In the year 1821, the state of Maryland enacted, 
that all importers of foreign articles, commodities, <fec, 
by bale, package, &c.,and those persons selling the same 
at wholesale by bale, package, &c, shall, before they are 
authorized to sell, &c, take out a license, for which they 
shall pay fifty dollars, <fec. This act was resisted as a 
violation of the Constitution, and the Supreme Court 
decided that it was unconstitutional. The ground of 
the decision was, that although an import duty is gene- 
rally secured before the goods are landed, yet a tax is 
not the less an impost, though levied on them after they 
were landed ; that a duty on imports is not merely a 
duty on the act of importation, but is a duty on the thing 
imported. 2 Nor does it make any difference whether the 
duty was imposed by way of license upon the occupa- 
tion, or as a direct duty on the article. 

3 Story's Coram. 472. 2 12 Wheaton's Rep. 419. 



100 CONSTITUTION OF 

§ 276. It has already been seen that a state has no 
power to tax the Bank of the United States, because 
they have no power to restrain the constitutional means 
given to the government to execute constitutional ends. 

§ 277. In the same manner it has been decided that 
a state has no power to tax stocks issued for loans to the 
United States. 1 

§ 278. Tonnage duties are taxes laid on vessels at so 
much per ton. After what has been said upon the pro- 
priety of imposts on imports and exports by the states, 
the reason for prohibiting a duty on tonnage will be 
evident. If the states could have laid duties on ton- 
nage, they could have effected, indirectly, all the mis- 
chiefs flowing from a power in the states to tax imports 
and exports. 

§ 279. The states shall not keep troops or ships of 
war in time of peace : this again is founded on the 
same principles as the other prohibitions relative to the 
exercise of national sovereignty ; to keep troops, make 
war, &c. are attributes of national sovereignty, which 
could not exist at once in both the general and state 
governments, without constituting them separate nations, 
— a result which it was the very object of the Constitution 
to prevent. Under the recent ordinances and laws of 
South Carolina, a body of 12,000 volunteers were called 
out, — a part of whom were armed, disciplined, and main- 
tained at the expense of the state. In consequence of 
the compromise in respect to the Tariff, the question of 
the legality of this array has not arisen ; but there can 
be no reasonable doubt that it was in every respect 
troops, and as such unconstitutional. The prohibition 
does not extend to a municipal guard, such as those 
kept to guard penitentiaries and arsenals ; for these are 
not troops, but merely ministers of the civil law. 

fy 280. The power to make treaties, alliances, and 

» Wartona*. The City Council of Charleston, 2 Peters' R. 449L 



THE UNITED STATES. 101 

confederations had, in another place, been taken from the 
states ; to this prohibition is here superadded that of mak- 
ing compacts and agreements with another slate or with a 
foreign poiver, without the consent of Congress. It may 
be asked what compacts and agreements are here meant ? 
As alliances, treaties, &c. had before been mentioned, 
this clause refers 1 to "private rights of sovereignty; 
such as questions of boundary, interests in land situated 
in the territory of each other, and other internal regu- 
lations for the mutual comfort and convenience of states 
bordering on each other." The compact between Vir- 
ginia and Kentucky is of this class. 

§ 281. No state can control the exercise of any 
authority under the general government. 2 

§ 2S2. The state courts cannot annul the judgments, 
or determine the extent of the jurisdiction, of the courts 
of the Union. 3 

§ 283. No state tribunal can interfere with seizures 
of property made by revenue officers under the laws of 
the United States. 4 

§ 284. No state can issue a mandamus to an officer 
of the United States. The official conduct of an officer 
of the government of the United States can only be con- 
trolled by the power that created him. 5 

§ 285. State laws, as, for example, statutes of limit- 
ation, insolvent laws, &c, have no operation upon the 
rights or contracts of the United States. 6 

1 3 Story's Coram. 272. 2 1 Kent's Coram. 382. 3 5 Cranch, 
115. 4 2 Wheaton, 1. 5 6 Wheaton, 598. 6 8 Whea- 

ton, 253. 



12 



102 CONSTITUTION OF 



ARTICLE II. 

OF THE EXECUTIVE. 

SECTION I. 



§ 286. Clause 1st. The Executive power shall be vested 
in a President of the United States of America. He shall 
hold his office during a term of four years, and, together 
with the Vice-President, chosen for the same time, be 
elected asfolloivs .* 

§ 287. The chief points laid down in this clause are, 
1st, The unity of the executive ; 2d, That he shall be 
elected ; 3d, He shall hold his office for a limited time ; 
and, 4th, That he be styled President. 

1st. As to the unity of the executive, common sense, 
as well as the agreement of the best writers, 1 unite in the 
opinion, that the office which is entirely ministerial, — and 
in our government the executive is so, — is better filled 
by one head than by several. History has in all in- 
stances condemned the vesting executive power in the 
hands of a council, and whenever the experiment has 
been tried among the states, it has proved disastrous. 

2d. The next principle laid down is, that the executive 
shall be elective ; and this is the distinguishing character- 
istic of our government from that of England, France, 
and other governments of Europe, where some portion 
of constitutional liberty is enjoyed. It is not the power 
possessed by the executive so much as it is the authority 
whence, and the mode in which, it is derived, that consti- 
tutes the difference between these governments and ours. 

1 Montesquieu's Spirit of Laws, book II. chap. 6 ; De Lolmc 
on Constitution of England ; 1 Kent's Comm. 253, 255 ; 3 Story's 
Comm. 282. 



THE UNITED STATES. 103 

The hereditary and perpetual principles which prevail in 
all the governments of Europe for ever destroys all ac* 
countability on the part of the executive to the people ; 
hence the English maxim, " The king can do no wrong." 
He is, by their constitution, placed above inquiry and 
accountability. In this country, however, there is ac- 
countability in all the departments of the government. 
The executive is elective, and his office of limited dura- 
tion ; so that if he err or offend, he may soon be held 
amenable at the bar of public opinion. 

3d. The office is limited. — This principle, like that of 
election, is necessary to give a full and perfect control 
of the public opinion over the executive, and make it 
responsible. 

4th. The style of President is very appropriate to the 
office of one whose duty it is to preside over the adminis- ' 
tration of public affairs. 

Of the Vice-President we shall speak hereafter. 

§ 288. Clause 2d. Each state shall appoint, in such 
a manner as the Legislature thereof may direct, a num- 
ber of electors equal to the whole number of senators 
and representatives to which the state may be entitled 
in the Congress ; but no senator or representative, or 
person holding an office of trust or profit under the 
United States, shall be appointed an elector. 

§ 289. The electors are to be appointed in the manner 
which the Legislature shall direct. In the different states, 
different modes of electing the electors have prevailed. 
In some, the district mode has prevailed, as in the state 
of Maryland ; in others, as in Delaware, they are elected 
by the Legislature itself; but generally they are elected 
by general ticket. The first has been found to fritter 
away the power of the state, and the second seemed to 
take it away from the people. 

The number of electors a state is entitled to is equal 
to the whole number of senators and representatives ; 



104 CONSTITUTION OF 

thus, Ohio has 19 representatives and 2 senators; con- 
sequently she is entitled to 21 electors. 

No qualification is required of an elector, except he 
shall not hold an office of profit or trust under the govern- 
ment of the United States. 

§ 290. The next clause in the Constitution has been 
abrogated by an amendment, passed by the consti- 
tutional number of states in 1801, which we shall pres- 
ently recite. 

That clause of the Constitution required that the 
electors should vote for tivo persons, without designating 
either of them for President or Vice-President. That the 
person having the greatest number of votes, if that be a 
majority of the electors, shall be President ; and if there 
be more than one who has such a majority, and have 
also an equal number of votes, then the House of Repre- 
sentatives shall immediately choose by ballot one of 
them to be President ; but if no one has the majority, 
then from the Jive highest the House shall choose the 
President. Each state in the House shall have one vote. 
After the choice of President, the person having the 
highest number of votes shall be Vice-President, and if 
two have an equal number of votes, the Senate shall 
choose between them. 

§ 291. As in the mode here pointed out there was 
no distinction made between President and Vice-Presi- 
dent, it follows that, in party conflicts, where the whole 
party support one ticket, it must necessarily happen, 
that unless a vote be dropped, two persons would have 
an equal number of votes, and consequently the election 
devolve upon the House of Representatives. This 
difficulty actually occurred at the election of 1801, at 
which Jefferson and Burr received the same number of 
votes. The House of Representatives, being divided by 
violent party feelings, protracted the election through 
thirty-six ballotings, and at last made the election only 



THE UNITED STATES. 105 

in consequence of the danger of vacating the executive 
office. The result of that canvass gave rise to an 
amendment of the- Constitution, prescribing the present 
mode of election. 

The following is the amendment : 

§ 292. 12th Amendment to the Constitution. The 
electors shall meet in their respective states, and vote by 
ballot for President and Vice-President, one of ivhom at 
least shall not be an inhabitant of the same state with them- 
selves ; they shall name in their ballots the person voted 
for as President, and in distinct ballots the person voted 
for as Vice-President ; and they shall make distinct lists 
of all persons voted for as President, and of all persons 
voted for as Vice-President, and of the number of votes 
for each, which lists they shall sign and certify, and 
transmit, sealed, to the seat of the government of the 
United States, directed to the president of the Senate ; 
the president of the Senate shall, in the presence of the 
Senate and the House of Representatives, open all the 
certificates, and the votes shall then be counted ; the 
person having the greatest number of votes for President 
shall be the President, if such number be a majority of 
the whole number of electors appointed : and if no per- 
son have such a majority, then from the persons having 
the highest numbers, not exceeding three, on the list of 
those voted for as President, the House of Representa- 
tives shall choose immediately, by ballot, the President. 
But in choosing the President, the votes shall be taken 
by states, the representation from each state having one 
vote ; a quorum for this purpose shall consist of a mem- 
ber or members from two-thirds of the states, and a 
majority of all the states shall be necessary to a choice. 
And if the House of Representatives shall not choose 
a President whenever the right of choice shall devolve 
upon them, before the fourth day of March next follow- 
ing, then the Vice-President shall act as President, as in 



106 CONSTITUTION OF 

case of the death or other constitutional disability of the 
President. 

§ 293. The person having the greatest number of 
votes as Vice-President shall be the Vice-President, 
if such a number be a majority of the whole number 
of electors appointed ; and if no person have a ma- 
jority, then from the two highest numbers on the list 
the Senate shall choose the Vice-President : a quorum 
for that purpose shall consist of two-thirds of the whole 
number of senators, and a majority of the whole number 
shall be necessary to a choice. 

§ 294. But no person constitutionally ineligible to 
the office of President shall be eligible to that of Vice- 
President of the United States. 

§ 295. By this arrangement, the competitors for the 
vice-presidency were no longer candidates likewise for 
the presidency ; different persons are to be distinctly 
voted for as candidates for each office. This is said to 
diminish the dignity of the office of Vice-President, but 
it seems to be absolutely necessary to destroy the very 
confusion of persons and offices which occurred before. 

The Senate are at liberty now to choose the Vice- 
President immediately after counting the votes, which 
before they could not have done without a choice of 
President. This is certainly an improvement. 

§ 296. The mode of choosing the President does not 
yet seem to be perfect. A discussion might arise, on 
opening the certificates, as to the competency of the 
electors, the authority of the votes, &c, for which the 
Constitution has made no provision. 1 

An instance of defect is put in the case in which an 
equality of votes should be given for more persons than 
the number from which the choice is to be made. 2 

§ 297. 3d Clause. The Congress may determine the 

» 3 Story's Comm. 327. 2 Idem. 



THE UNITED STATES. 107 

time of choosing the electors, and the day on which they 
shall give their votes ; which day shall be the same 
throughout the United States. 

The reason of this clause is obvious. Were the time 
of giving the votes different in the different states, there 
would be the greatest possible room for intrigue among 
the electors, and as their body is small, some of them 
might be influenced by undue means. 

The power of determining the time of choosing the 
electors is also given to Congress. They have not, 
however, so exercised as to appoint the same time. In 
1792, they enacted that the states should choose their 
electors within 34 days of the first Wednesday in 
December. The consequence is, that within that time 
the elections are still made at different periods. It 
would seem that, to prevent all possibility of improper 
influence over the people, the elections should all have 
been held on the same day. As it is, those which are 
held last must be more or less influenced by those which 
are held first, upon the principle of a common desire in 
human nature to be on the strong side. 

§ 298. 4th Clause. No person, except a natural born 
citizen, or a citizen of the United States at the time of 
the adoption of the Constitution, shall be eligible to the 
office of President; neither shall any per son be eligible 
to that office who shall not have attained to the age of 
thirty-five years, and been fourteen years a resident 
within the United States. 

That the chief executive officer should be a citizen of 
the United States, and a native, is unquestionable. The 
age of thirty-five is young enough. The Presidents 
elected have all been more than that ; most of them 
between sixty and seventy. Indeed, there will always 
be enough of the fire of human passions infused into the 
executive by partisans without the aid of the warmth and 
ambition of youth. 

§ 299. By residence in the United States is not meant, 



108 CONSTITUTION OF 

an absolute inhabitancy in the United States during the 
whole period, but such an inhabitancy as constitutes a 
permanent domicil. Any other construction would take 
away the citizenship of any public officer resident 
abroad in pursuance of his duty. 

§ 300. 5th Clause. In case of the removal of the 
President from office, or of his death, resignation, or 
inability to discharge the powers and duties of said 
office, the same shall devolve on the Vice-President ; and 
the Congress ?nay by law provide for the case of removal, 
death, resignation, or inability, both of the President 
and Vice-President, declaring what officer shall then 
act as President, and such officer shall act accordingly, 
until the disability be removed, or a President shall be 
elected. 

Congress, on this head, have provided, that in case of 
the removal, death, or resignation, or inability of the 
President and Vice-President, the President pro tern, of 
the Senate, and in case there shall be no such President 
of the Senate, then the Speaker of the House of Repre- 
sentatives for the time being, shall act as President, until 
the disability be removed or the vacancy filled. 

§ 301. The case of a vacancy in the offices of 
President and Vice-President, by reason of non-election 
at the proper period, is not provided for in the Constitu- 
tion. Congress have declared that, in case of such an 
event, there shall immediately be held a new election. 
"Whether this be constitutional or not is unsettled. 

§ 302. 6th Clause. The President shall, at stated 
times, receive for his services a compensation which 
shall neither be increased nor diminished during the 
period for which he shall have been elected; and he 
shall not receive within that period any other emolument 
from the United States, or any of them. 

The object of this provision is plain enough ; it would 
not be proper to allow either the general or state govern- 
ments an opportunity, by increasing or diminishing the 



THE UNITED STATES. 109 

salary of the executive to play upon its wants or its 
avarice. Congress have permanently fixed the salary 
of the President at twenty-five thousand dollars, and 
that of the Vice-President at five thousand dollars. 

§ 303. 7th Clause. Before he enter on the execution 
of his office, he shall take the following oath or affirma- 
tion : 

I do solemnly swear (or affirm), that I will faithfully 
execute the office of President of the United States, and 
will, to the best of my ability, preserve, protect, and defend 
the Constitution of the United States. 

The solemnities of an oath seem to be proper and 
necessary to all responsible offices, and peculiarly so to 
that great and sacred one, the chief magistracy of a 
great republic. 

SECTION II. 

§ 304. 1st. Clause. The President shall be commander 
in chief of the army and navy of the United States, and 
of the militia of the several states, when called into the 
actual service of the United States ; he may require the 
opinion in writing of the principal officer in each of the 
executive departments, upon any subject relating to the 
duties of their respective offices; and he shall have power 
to grant reprieves and pardons for offences against the 
United States, except in cases of impeachment. 

The power to command the army and navy, militia, 
and entire military armament, flows necessarily from 
the nature 1 of an executive. It is made the duty of the 
executive to enforce the laws, preserve order, and 
repel invasions, — duties which could not be performed 
without the command of requisite force. 

§ 305. The power of the President to delegate his 
authority to another officer was disputed during the last 
war. 2 The exception, however, seems untenable, from 



1 1 Kent's Comm. 264. * 8 Mass. Rep. 548. 

K 



HO CONSTITUTION OF 

the reason that, if no one but the President in person can 
command them, then the President can only control one 
detachment in one place, — a result evidently contrary to 
the intention of the Constitution. During the adminis- 
tration of Washington, the governor of Virginia com- 
manded several detachments from different states under 
the appointment of the President, without dispute. 1 The 
power to require opinions in writing from the heads of 
departments is the mere expression of a power which 
was necessarily incident to the organization of the 
executive. 

§ 306. The power to grant reprieves and pardons is 
one which requires to be, and is exercised. It has been 
supposed by some that a perfect criminal code requires 
no such power ; but there is no perfect criminal code. 
There is no such administration of human justice^ that, 
after the conviction of the prisoner, it shall always be 
improper and unjust to pardon him. The only proper 
depository of such a power is the executive. The 
Judiciary cannot pardon without first supposing itself 
wrong in its own decisions ; nor can the Legislature 
without relaxing the law. He, however, whose only 
duty it is to execute the laws, which others have made 
and adjudged, may very consistently be allowed to exer- 
cise a discretion in punishment. 

§ 307. 2d Clause. He shall have power, by and with 
the advice and consent of the Senate, to make treaties, 
provided two-thirds of the senators present concur : and 
he shall nominate, and by and with the consent and ad- 
vice of the Senate, shall appoint ambassadors, other 
public ministers, and consuls, judges of the Supreme 
Court, and all other officers of the United States, whose 
appointments are not herein otherwise provided for, and 
which shall be established by laic ; but the Congress 
may, by law, vest the appointment of such inferior off- 

1 5 Marshall's Washington, 580. 



THE UNITED STATES. Ill 

eers as they think proper, in the President alone, in the 
courts of law, or in the heads of departments. 

Some very important political questions have arisen 
out of this provision, and agitated the minds of eminent 
statesmen, as well as the councils of the country. 

§ 308. In the year 1796, a treaty was made 1 by Mr. 
Jay with Great Britain, containing some stipulations very 
offensive to the House of Representatives. The treaty 
was ratified by the President and Senate, but required 
a law to carry it into effect. On that occasion, after 
much debate, the House of Representatives declared by 
a vote of 62 to 37, that they had the right to withhold 
their assent to the validity of a treaty, andjnight, at their 
pleasure, withhold a law to carry it into effect. This 
doctrine was denied by President Washington, and the 
exclusive power of the President and Senate affirmed. 
In their final decision upon the treaty, the House deemed 
it expedient, by a vote of 51 to 48, to execute the treaty, 
but reserved to themselves the rights they claimed. 

In 1816, the same question occurred, and the House 
then decided that the sole power over treaties rested with 
the Senate and President. 

§ 309. The predominance of opinion now is, that the 
power to make treaties, &c, is vested only in the execu- 
tive and two-thirds of the Senate. The great reason is, 
that the Constitution has made treaties, as well as laws, 
the supreme law of the land, and as such has made them, 
when ratified, a binding contract with other nations? 

§ 310. The next power conferred on the President, 
with the advice and consent of the Senate, is the 
appointment of ambassadors, ministers, consuls, and 
other public officers. This power is necessary to, and 
a part of, the executive power ; for the executive duties 
have to be performed by the officers, and if they are not 

1 5 Marshall's Life of Washington, 650. 3 4 Elliott's 

Debates, 250, 275. 



112 CONSTITUTION OF 

appointed by, and not responsible to, the executive, he 
cannot be accountable for the performance of those 
duties. 1 

§ 311. As the Constitution gave power "by and 
with the advice and consent of the Senate" to make 
appointments, but said nothing about removals, it early 
became a question whether the power of removal was 
vested in the President alone, or in the President and 
Senate jointly. In the year 1789, the question came 
before Congress, on a motion to strike out of the act 
creating a Secretary for Foreign affairs, a clause vest- 
ing the President with the power of removal. After a 
long and animated debate, the House decided by a vote 
of 34 to 20 not to strike out the clause, — thus affirming 
the power of the President. In this debate, it was 
expressly declared, that the decision was intended to be 
permanent, and act as an exposition of the Constitution ; 
as such it has remained, and the power of the President 
to remove was never questioned till recently. In favour 
of the power were Messrs. Madison, Ames, Boudinot, 
and Baldwin ; against it, Messrs. Sherman, Gerry, Smith, 
and Jackson. 

§ 312. A learned commentator 2 has recently ex- 
pressed surprise, that this power of removal should so 
long remain in the President's hands without question, 
and intimates that it may be liable to abuses, and is at 
best of questionable constitutionality. To this it may 
be answered, that the decision of this question was one 
of the most solemn ever made by Congress, and, there- 
fore entitled to high respect. As to the question itself, 
any other decision than that made, may at once be re- 
duced to an absurdity. Thus, suppose the power is 
vested in the President with the advice and consent of 
the Senate ; the President wishes to remove an officer, 
and communicates his wish to the Senate : that body 

' 4 Elliott's Debates, 148. 2 3 Story's Comm. 395, 396. 



THE UNITED STATES. 113 

calls for the reason ; the President gives it, and the 
officer, through the mouth of some senator, replies : 
the President is then reduced to the level of an accuser, 
or a defendant, in respect to one of his own officers, be- 
fore a collateral branch of the government, which as- 
sumes to decide between them, and be superior to both ! 
And suppose the Senate does not consent to his re- 
moval,- — the officer retains his place after he has be- 
come obnoxious to his superior, and it may be, obtains 
impunity for his offences. Is this consistent with either 
the dignity or the responsibility of the executive ? It is 
supposed by some very judicious persons, that an officer 
is entitled to his place during good behaviour, and that 
he acquires something like an estate in his office. But 
no principle like this is recognised in the Constitution. 
On the contrary, every thing there is made directly or 
indirectly elective, and consequently nothing is placed on 
a more permanent footing than public opinion. When 
that changes, minor things must change with it. 

§ 313. Such inferior offices as they may think proper, 
Congress may vest in the President alone, in the courts 
of law, or in the heads of departments. A learned 
commentator 1 supposes, in consequence of this clause, 
that Congress may require the consent of the Senate to 
such appointments : now this is not at all obvious ; for 
the Constitution, after giving the appointment of superior 
officers to the President and Senate, may give the ap- 
pointment of inferiors to whom ? to this same Presi- 
dent and Senate 1 No, but to the President alone, the 
courts of law, or the heads of departments. After this 
express designation of these persons, it is not in the 
competency of Congress to confer the appointment on 
others. 

§ 314. It is decided, in reference to the power of ap- 
pointments, that the Supreme Court cannot issue a man- 

1 3 Story's Comfit. 397. 
K2 



114 CONSTITUTION OF 

damus to compel the delivery of a commission to an 
officer after it is made out. This was so decided in a 
case 1 in which the commission had been made out and 
deposited in the Secretary of State's office, during the 
administration of Mr. Adams, and on the accession of 
Mr. Jefferson he withheld it, — deeming 2 that delivery 
was necessary to its perfection, and being himself un- 
willing to appoint the man. The case went off for 
want of original jurisdiction, but the court expressed 
the opinion, that the withholding the commission was a 
violation of a legal right. 

$315. 3d Clause. The President shall have power 
to Jill up all vacancies that may happen during the re- 
cess of the Senate, by granting commissions which shall 
expire at the end of their next session. 

The appointments thus made expire at the end of the 
next term of the Senate by the constitutional limitation. 
Suppose the President should fill a vacancy during the 
recess of the Senate, and should then nominate this offi- 
cer to the Senate, and the Senate should reject him ; and 
the President should, on the first day of the next recess, 
appoint him again to fill the vacancy, may he not in this 
manner perpetuate an appointment without the consent 
of the Senate ? Certainly this cannot be the intention 
of the Constitution, for it would defeat the co-ordinate 
power of appointment which it has vested in the Senate : 
Yet such a practice 3 has in some instances recently 
obtained. Where is the remedy 1 Nobody is vested 
with power to annul the appointment ; but it can be 
effectually restrained by withholding the appropriations. 
Here, then, is an instance of the signal virtue of powers, 
effective and restraining, vested directly in the repre- 
sentatives of the people. 

§ 316. Does the power to fill up vacancies give the 

1 1 Cranch, 137. 2 4 Jefferson's Correspondence. 3 See 
the Journals of the Senate, 1830, 1831, 1832, 1833; cases of 
Gwynn and Gardner. 



THE UNITED STATES. 115 

President authority to appoint and commission ambassa- 
dors during the recess of the Senate ? In this manner 
President Madison appointed the Commissioners to ne- 
gotiate the treaty of Ghent. But this is not a vacancy, 
neither does it happen, and the Senate held accordingly, 
in 1822, and decided, that the President could not 
create the office of minister during the recess of the 
Senate without the consent of the Senatec 

SECTION III. 

§ 317. He shall, from time to time, give the Congress 
information of the state of the Union, and recommend 
to their consideration such measures as he shall judge 
necessary and expedient ; he may, on extraordinary oc- 
casions, convene both Houses, or either of them, and in 
case of disagreement between them with respect to the 
time of adjournment, he may adjourn them to such time 
as he may think proper ; he shall receive ambassadors, 
and other public ministers ; he shall take care that the 
laws be faithfully executed ; and shall commission all 
the officers of the United States. 

§ 318. The President, in conformity with the first 
part of this section, lays' before Congress, at the first 
day of their session, a JWessage, in which is exhibited 
the operations of the government during the past year, 
and which is accompanied with reports from the chief 
officers of government, illustrating the condition and 
prospects of each department of the government. In 
addition to which the President gives his opinion upon 
all the measures which, in his opinion, ought to be acted 
upon. During the administration of Presidents Wash- 
ington and Adams, the President met Congress in per- 
son, and delivered oral speeches, to which answers 
were returned, similar to the mode still adopted by the 
constitutional governments of Europe. President Jeffer- 
son, however, abolished that custom, and ever since the 
message has been sent to Congress, and no answer re- 



116 CONSTITUTION OF 

turned. The President communicates to Congress all 
the new circumstances, views, or information which 
may from time to time occur ; and Congress, by calls 
upon the different departments, obtain all the docu- 
mentary facts which they may desire. 

§ 319. The power to call an extraordinary session of 
Congress may become absolutely necessary to the pub- 
lic safety. There have been three extraordinary ses- 
sions called ; one in 1797, by President Adams, on the 
occasion of the difficulties with France ; another in 
1809, by President Madison ; and another in 1S13, also 
by President Madison. 

§ 320. The President has a general authority to exe- 
cute the laws ; and in the exercise of his political duties, 
independent of the specific limitations imposed by the 
law and the Constitution, he is subject to no control, but 
is amenable only to his conscience and his country. 

§ 321. As incident to the power of receiving 1 ambas- 
dors, the President has the power to reject and dismiss 2 
them. 

§ 322. Incident to the executive functions is the 
power to perform them without let or hinderance. 3 

SECTION IV. 

§323. The President, Vice-President, and all civil 
officers of the United States, shall be removed from 
office on impeachment for, and conviction of, treason, 
bribery, or other high crimes and misdemeanors. 

In what mode this impeachment is to be made and 
tried, we have seen elsewhere. Jill officers are liable 
to this impeachment for offences, although there is no 
prohibition against other kinds of removal. 

1 Federalist, 69. 2 Case of Genet, 5 Marshall, 443. 

3 3 Story's Comm. 419. 



THE UNITED STATES. 117 



ARTICLE III. 
JUDICIARY. 

SECTION I. 

§ 324. The Judicial power of the United States shall 
he vested in one Supreme Court, and in such inferior 
courts as the Congress may from time to time ordain 
and establish. The Judges, both of the Supreme and 
Inferior Courts, shall hold their offices during good be- 
haviour ; and shall, at stated times, receive for their 
services a compensation which shall not be diminished 
during their continuance in office. 

§ 325. The Supreme Court is instituted by the Con- 
stitution, but receives its organization from Congress. 1 
The Constitution left the number of the judges, the 
mode of its proceeding, and the character of its officers, 
to be subsequently determined by the Legislature. By 
successive acts, 2 Congress have organized the Supreme 
Court by creating a Chief Justice and six Associate Jus- 
tices, any four of whom make a quorum. It holds one 
annual term at the seat of government, and though four 
judges are necessary for general business, yet any one 
of them may make all the necessary orders preparatory 
to trial, and one judge attends annually at the city of 
Washington for that purpose. 

§ 326. The inferior courts organized by Congress 
are the Circuit and the District Courts. 3 The Circuit 
Court is composed of one Judge of the Supreme Court 

1 1 Kent's Comra. 279. 2 Acts of April> 1802 ; F e t). 1807, 
8 Kent's Comm. 282. 



118 CONSTITUTION OF 

and the District Judge, except when the District Judge 
is interested, when it may be held by the Circuit Judge. 
The number of Circuits is equal to the number of Su- 
preme Judges, and are composed of two or three dis- 
tricts generally, but some of the western states, as 
Indiana, Illinois, Missouri, &c.,have no Circuit Courts. 

§ 327. Another court, inferior to the Supreme Court, 
is the District Court. 1 This is composed of a single 
judge, who holds annually four terms, and special 
courts at his discretion. The districts are composed 
generally of a single state, but sometimes of a part of 
a state, as in New- York and Pennsylvania. 

The judges hold their offices during good behaviour. 
Any other provision than this would place them at the 
mercy of the other branches of the government. It is 
plain that the members of distinct branches of the gov- 
ernment must be wholly independent of the other 
branches, or the whole would soon become mixed up into 
one absorbing power. In the state of New- York, sixty 
is the age at which a judge's office expires, and in Con- 
necticut, seventy. These were both, however, pro- 
visions made to answer a temporary and party purpose. 
They are as anomalous in jurisprudence as they are 
contrary to the maxims derived from uniform experi- 
ence. Youth for energy and age for judgment are rules 
everywhere illustrated in human life. The ablest 
judges that ever adorned England and America, Mans- 
field and Marshall, gave their best decisions after the 
age of seventy. 

§ 328. Their compensation shall not be diminished 
while in office. This is obviously necessary. Jjife 
depends upon sustenance, and to take from the judges 
their salaries would drive them from office. 

1 Kent's Comm. 283. 



THE UNITED STATES. 119 



SECTION II. 



§329. Clause 1. The Judicial power shall extend to 
all cases in law and equity, arising under this Constitu- 
tion, the laws of the United States, and treaties made, or 
which shall be made, under their authority ; to all cases 
affecting ambassadors, other public ministers, and con- 
suls; to all cases of admiralty and maritime jurisdic- 
tion; to controversies to which the United States shall 
be a party ; to controversies between two or more states ; 
between a state and citizens of another state; between 
citizens of different states ; between citizens of the same 
state, claiming lands under grants of different states ; 
and between a state, or the citizens thereof, and foreign 
states, citizens, or subjects. 

The 11th amendment to the Constitution declares, 
that The Judicial power of the United States shall not 
be construed to extend to any suit in law or equity, com- 
menced or prosecuted against one of the United States by 
citizens of another state, or by citizens or subjects of any 
foreign state. 

§•330. The jurisdiction of the Supreme Court is here 
made coextensive with national objects, and independent 
of other branches of the government. " There is no 
liberty if the judiciary power be not separated from the 
legislative and executive powers." 1 The Constitution 
and the laws of the United States are to be construed and 
adjudged of by the Supreme Court. How could they 
be adjudged by the State Courts without at once making 
the States superior to the Union ? Yet it must be ob- 
served, that the state, as well as the other courts, have 
the power to construe United States and all other laws, 
when they come incidentally in question upon the trial 
of a cause. 

§ 331. All matters in relation to treaties, public min- 
isters and consuls, admiralty and maritime jurisdiction, 

. . l Montesquieu's Esprit de Loix, book 11, chap, t 



120 CONSTITUTION OF 

come under the sole cognizance of the Supreme Court. 
These things belong to the laivs of nations ; hence, 
only a national court can sit upon them. The Supreme 
Court is the national court of the United States, and in 
this single clause, we see at once the wide;; distinction 
placed by the Constitution between the United States' 
Courts and the State Courts. By this, taken in con- 
nexion with the other clauses upon the jurisdiction of the 
Supreme Court, and the prohibitions upon the states, the 
Supreme Court is made a naiiional, while the State 
Courts ctre merely municipal courts. 

§ 332. The next sentence is in perfect conformity to 
this principle ; for if the Supreme Court be national, it 
is the proper arbiter between the different states, and in 
relation to all controversies which involve the rights and 
laws of different states. Accordingly, the Constitution 
gives the court jurisdiction of controversies between 
two or more states ; between a state and the citizens of 
other states, or foreign states when the state is not de- 
fendant ; and between citizens of the same state claim- 
ing under grants of different states. The simple read- 
ing of these provisions is a sufficient answer to every 
theory which supposes that the states have sufficient 
power to annul the laws of the Union. In this article 
a tribunal is erected superior to all state courts, and by 
the express direction of the Constitution, a competent 
arbiter between the states themselves. " There must 
be some tribunal than which there can be no higher," is 
an axiom self-evident in all governments which purport 
to have system and stability ; for without it they must 
become mere anarchies. In the Supreme Court, the 
Constitution has established that tribunal in the United 
States, and it is manifest, that within its jurisdiction, 
pointed out by the Constitution, it is above all others. 
When we go behind this, there is nothing left but the 
people,— whose work the Constitution itself is, — but, 
who cannot be appealed to against their onw laws, till 
they have first resolved those laws to be a nullity, and 



THE UNITED STATES* 121 

themselves into a state of nature. This is a right which 
is left to all people of all nations, savage and civilized, 
- — the right of rebellion, — never to be exercised till suf- 
ferance is exhausted. Provision is made, as we shall 
see hereafter, for amending the Constitution, but this 
presupposes a constitution, and a government; this 
amendment then, in the forms prescribed by the Consti- 
tution, is not the exercise of that ultimate right we have 
spoken of above. 

§ 333. But, while it is affirmed that the Supreme 
Court is the ultimate tribunal, it must be borne in mind 
that the functions of a court are to say ivhat the law is, 
and not to make it. They are judges, not lawgivers. 
" The judicial department has no will in any case. 
Judicial power, as contradistinguished from the power of 
the laws, has no existence. Courts are the mere instru- 
ments of the law, and can will nothiiig." 1 

§ 334. In the clause above the phrase is read " all 
cases in law or equity." The reference here is plainly 
to those common law distinctions of law and equity reme- 
dies, which before existed in the jurisprudence of Eng- 
land and this country. So far as the remedies go, 
the Constitution recognises the existence and the opera- 
tion of the common law. 2 And it would seem, as the 
reference is direct to the remedy at common law, that 
the principles upon which the ' remedy is to be applied 
must be the same ; and such is the interpretation and 
mode of administering justice in such cases in the courts 
of the United States. What is a case, as here contem- 
plated 1 "A case is a suit in law, or equity, instituted 
according to the regular course of judicial proceedings ; 
and when it involves any question arising under the 
Constitution, laws, or treaties of the United States, it is 
within the judicial power confided to the Union." 3 

1 Osborne vs. Bank United States, 9 Wheaton's Rep. 866. 
K 3 Story's Coram. 506. 3 Id. 507 ; 1 Tucker's Blk. Coram. 

App. 418, 420 ; Madison's Virginia Resolutions, 1800. 
L 



122 CONSTITUTION OF 

§ 335. To understand the jurisdiction of the Supreme 
Court, we must consider the next clause of this section, 
which is, 

2d Clause — In all cases affecting ambassadors, other 
public ministers, and consuls, and those in which a state 
shall be a party, the Supreme Court shall have original 
jurisdiction. In all the other cases before mentioned, the 
Supreme Court shall have appellate jurisdiction, both as 
to law and fact, with such exceptions and such regu- 
lations as the Congress shall make. 

§ 336. Jurisdiction may be considered, 1st, With 
reference to the parties ; 2dly, In relation to the subject 
matter ; and 3dly, In respect to the realm or locality. 

1st. Jurisdiction in reference to the parties. The 
parties who come within the jurisdiction of the Supreme 
are, 1. Ambassadors, public ministers, and consuls; 
2. The United States ; 3. The States ; 4. Citizens of 
different states ; 5. Citizens of the same state; 6. Foreign 
states, citizens, or subjects. 

§ 337. 1. Ambassadors, public ministers, and con- 
suls. The grades of public ministers, and the laws 
which apply to them, we shall see in another place. * 
The rights, duties, powers, and privileges of public 
ministers are determined, not oy municipal constitutions, 
but by the law of nature and nations, which is equally 
obligatory upon all nations. Consuls are not strictly 
ministers, but merely commercial agents. The Con- 
stitution, however, has, in relation to the courts, placed 
them upon the same level as ministers. In cases against 
ministers and consuls, the jurisdiction is supposed ex- 
clusive. 2 

The indictments found against persons for offering 
violence to ministers, &c, and their servants, do not 
come within the scope of the phrase, affecting ambas- 
sadors, Sic. &c. The minister is not a party to the 
record. 3 Yet if he be not a party, the case may be one 

1 Chapter on the Practical Operation of the Government. 
2 1 Kent's Comra. 44. 3 3 Story's Comm. 524. 



THE UNITED STATES. 123 

which affects him in interest, and the court has decided 
that in such a case it has jurisdiction. 

§ 338. 2. The United States. To enforce the rights of 
the United States, they must sue either in their own 
courts, or those of the states. In the latter they would 
at once be subject to the states, the very end which the 
Constitution was formed to prevent. In their own 
courts they could enforce their own rights, and have a 
uniform rule of justice. The latter, therefore, was 
adopted. The clause which conferred this jurisdiction 
on the Supreme Court gave no power to individuals to 
bring suit against the United States, nor have they or 
the states any such power. It is inherent in the nature 
of sovereignty not to be amenable to any private person. 1 
The same exemption extends to every state in the 
Union. 2 What remedy, then, has the citizen against the 
national government for injustice and injury? If it be 
an oppression exercised by public functionaries upon the 
body of the people, the people have, through the Con- 
stitution, the power of removing them. If the oppression 
be in the exercise of unconstitutional powers, the function- 
aries who wield them are amenable for their injurious 
acts to the judicial tribunals of the country, at the suit 
of the oppressed. 3 

§ 339. The government is, in itself, incapable of a 
personal ivrong, such as assault and battery, and personal 
violence. 4 In respect to property, the remedy lies 
against the immediate perpetrators, who cannot shelter 
themselves under an agency from the government. 
Such agent, like every other violater of the laws, must 
refund in damages to the injured party. 5 

§ 340. In the case of contracts, however, the agent 
is not responsible when lawfully made, and the govern- 
ment cannot be sued ; hence, the only remedy is by 

» Story's Coram. 538. 2 i b y # 3 Ibid. 539. 

« Ibid. 5 Ibid. 



124 CONSTITUTION OF 

legislative interposition, — an appeal to Congress. This 
may be justly considered as a defect upon the part of 
Congress, who have the right to provide a mode of 
settling private rights. In this respect, as in every other 
concerning justice between public and private rights, 
the contrast between us and the government of England 
is strongly against us. There the subject is allowed to 
bring what is called a petition of right before the Chan- 
cellor, who as a matter of duty, hears it, and administers 
right according to the fact. 1 

§ 341. 3. Another class of parties under the juris- 
diction of the Supreme Court are the States. The pro- 
vision subjecting the states to the jurisdiction of the 
Supreme Court, brings them at once within the sovereignty 
of the Union, even if all the powers before vested in the 
national government had not. This jurisdiction is fre- 
quently exercised, and although the states have often 
been much irritated, yet they have uniformly submitted. 
As the amendment to the Constitution has taken the 
states out of the jurisdiction of the Supreme Court when 
the suit is against them by individuals, it becomes im- 
portant to inquire when a s^ate is to be deemed a party, 
so as to avail itself of this exemption ? "A state is a 
party only when it is on the record as such, and sues 
or is sued in its political capacity." 2 It is not sufficient 
that it has an interest in the suit, as between other per- 
sons, or that its powers and duties come incidentally in 
question. 3 The same principle applies to incorporations 
under the state ; thus an incorporated bank, in which 
the state is stockholder, is suable, although the state is 
exempt from the action. 4 " As a member of a cor- 
poration, a government never exercises its sovereignty." 

§ 342. It is laid down as " a rule, which admits of no 

1 3 Story's Coram. 541. 2 Id. 549. 3 3 Dall. R. 411 ; 

United States vs. Planter's Bank of Georgia, 9 Wheaton, 904. 
* Story's Comra. 565, 



THE UNITED STATES. 125 

exception, that in all Gases under the Constitution of the 
United States, where jurisdiction depends upon the 
party, it is the party named on the record." 

§ 343. 4. The next class of parties are " Citizens of 
different states." The first inquiry here is, who is a 
citizen of a state, and how does he change his citizen- 
ship ? Does it depend upon his domicil, or residence, 
or upon any other principle ? Judge Story has answered 
these questions in his commentaries in a very satisfactory 
manner. " The Constitution," says the commentator, 
" having declared that the citizens of each state shall be 
entitled to all the privileges and immunities of citizens 
in the several states, every person, who is a citizen of 
one state, and removes into another, with the intention 
of taking up his residence and inhabitancy there, 
becomes in reality a citizen of the state where he 
resides ; and he then ceases to be a citizen of the state 
from which he has removed his residence." 1 What 
circumstances constitute such a change of residence? 
A removal from one state into another, with an intention 
of remaining, constitutes a change of residence, and con- 
sequently of citizenship. 2 But a native citizen of one 
state never ceases to be a citizen thereof till he acquires 
a new citizenship elsewhere. Residence 3 in a foreign 
country does not change his citizenship. Every citizen 
of a state is a citizen of the United States. 4 A natural- 
ized citizen, by a residence in any state in the Union, 
becomes a citizen of that state. So a citizen of a terri- 
tory, by a residence in* a state* acquires the character of 
the state where he resides. 5 

§ 344. But a naturalized citizen of the United States, 
or a citizen of a territory, does not become a citizen en- 
titled to sue in the courts of the United States, by such 

1 3 Story's Comm. 565. 2 Id. 3 1 Kent's Comm. Sect 4>. 

4 3 Story's Comm. 565. 5 Id. 566 ; 6 Peters' Supreme C. R. 76k. 
L2 



126 CONSTITUTION OF 

residence in a territory, nor until he has acquired a resi- 
dence in a particular state. 1 

§ 345. 5. A corporation, as such, is not a citizen of a 
state in the sense of the Constitution : but if all the mem- 
bers of the corporation are citizens, their character will 
confer jurisdiction. 2 A citizen may sue, who is trustee, 
executor, or administrator for another. 

§ 346. Citizens of the same state may be parties, 
when they claim under grants of different states. This 
is the only case in which the Constitution gives juris- 
diction directly to the Federal Courts, over cases be- 
tween citizens of the same state. The reason is, that it 
contemplates a oase in which the laws and boundaries 
of different states are brought into question, and upon 
which, therefore, the state tribunals are not unbiased. 

§ 347. 6. "Foreign states, citizens, and subjects" may 
be parties. Who is a foreign citizen or subject ? or who 
is an alien ? Any person who is not a citizen of the 
United States is an alien. But when he is naturalized, 
he is no longer an alien ; for this is a case provided for by 
the Constitution and the laws : and it makes no dif- 
ference whether he sues in his own name or as a trustee. 

§ 348. A foreign corporation established in a foreign 
country, all of whose members are aliens, can sue in the 
same manner. 

§ 349. The jurisdiction vests, however, only when 
one party to a suit is a citizen. 3 Alien enemies, however, 
cannot sue ; their right is suspended until peace. 

§ 350. Jurisdiction in relation to the subject matter 
Original or Appellate. 

The court has original jurisdiction in all cases con- 
cerning ambassadors, public ministers, and consuls, and 



1 1 Kent's Comm. 360 ; 1 Wheaton's R. 91. 2 United States 
vs. Planter's Bank, 9 Wheaton, 410 ; 8 Wheaton, 668. 3 Story's 
Comm. 571. 



THE UNITED STATES. 127 

those in which a state is the party ; in all others it has 
appellate jurisdiction, both as to law and fact, under such 
regulations and exceptions as Congress shall make. 
This jurisdiction cannot, by the words of the Constitution, 
be exercised without the intervention of Congress ; but 
Congress are bound by that part of the clause which 
refers to " all cases," to confer all the jurisdiction granted 
by the Constitution, in some form or other, upon the 
Supreme Court. By the act of September, 1789, this 
was done, and the Supreme Court have exercised their 
appropriate powers uninterruptedly since. 

§ 351. This original jurisdiction is confined to the 
enumerated cases, and cannot be enlarged by Congress. 
Congress cannot give it appellate jurisdiction, when the 
Constitution has given it original, nor original where it 
has appellate jurisdiction. 1 The grant of original juris- 
diction is exclusive, and negatives any enlargement. 

§ 352. Whether the original jurisdiction vested in the 
Supreme Court may not be exercised concurrently by 
the inferior courts, is an undecided point. 2 

§ 353. Another question is, whether the court can 
exercise appellate jurisdiction in those cases where it 
has original jurisdiction ; 3 and it is thought it can. 

§ 354. What is appellate jurisdiction 1 " The essen- 
tial criterion of appellate jurisdiction is, that it revives 
and corrects the proceedings in a cause already instituted, 
and does not create that cause." The appellate juris- 
diction may be exercised in a variety of forms, — indeed 
in any form which the Legislature may prescribe. But 
the substance must exist before the form can be applied. 
Where the object is to review a judicial proceeding, the 
mode is immaterial ; and a writ of habeas corpus, or 
mandamus, a writ of error, or an appeal may be used, 
as the Legislature may prescribe. 4 

1 3 Madison vs. Marbury, 1 Cranch, 137 ; 1 Kent's Comm. 302. 
2 11 Wheaton, 467. » 3 Story's Comm. 576. 4 Id. ; 6 Wheat- 
on's Rep. ; 2 Peters' Sup. C. R. 449 ; Ingersoll's Digest, 375. 



128 CONSTITUTION OF 

§ 355. The most usual modes of exercising appel- 
late jurisdiction are writs of error, appeals, or some 
process of removal. 1 An appeal removes the entire 
cause, fact, or will, or law for a review and new trial. 
A writ of Error removes nothing for re-examination 
but the law. 

§ 356. The appellate jurisdiction of the Supreme 
Court extends to the decisions of the State Courts. By 
the act of September 1789, Sect. 25, it is declared that 
the final judgment or decree of the state courts may be 
re-examined and reversed, or affirmed in those cases in 
which is drawn in question the validity or construction of 
a treaty, and the decision is against the right, title, or 
privilege set up, or claimed under it ; or where is drawn 
in question the validity of a statute, or an authority exer- 
cised under a state, on the ground of their being ad- 
verse to the Constitution, treaties, or laws of the 
United States, and the decision is in favour of their 
validity. Such cases may be brought up on writ of 
Error ; and siich writ has the same effect as if directed 
to the Circuit Court of the United States. 

§ 357. Hence, if the highest court in a state reverse 
the judgment of a subordinate court, and, on appeal to the 
Supreme Court of the United States, the judgment of the 
highest court in a state be reversed, it becomes a nullity^ 
and a mandate issues to the inferior court for execution. 1 
The record in such cases must show the error, by show- 
ing some act of jurisdiction. 

§ 358. Jurisdiction in respect to locality. Here 
we may consider, 1st, Within what boundaries the 
authority of the United States Courts is limited ; 2d, The 
maritime and admiralty jurisdiction of the courts. 

§ 359. 1. What are the territorial limits of juris- 
diction? The limits of jurisdiction, as it respects th© 

1 3 Dallas, 342 ; 1 Wheaton, 304.. 



THE TNITED STATES. 129 

Supreme Court are the limits of the United States, for 
the decisions of all other courts, whether territorial, dis- 
trict, or state, are within the rules as to subject and par- 
ties already laid, and are subject to revision in that 
tribunal ; except that, in the Territorial Courts, no appeal 
lies from their decisions without a special statuary pro- 
vision. The territories are under the sole and absolute 
control of Congress. 1 

§ 360. The district court has cognizance of crimes 
and offences, which are cognizable by the United States 
tribunals, and which are committed within the respective 
districts, or on the high seas. 

§ 361. The District Courts have also admiralty and 
maritime jurisdiction on the high seas, and also within 
waters leading from them? and in which vessels of ten 
tons burden may navigate. 2 

§ 362. The concurrent jurisdiction of the state and 
national courts has also been a subject of some diffi- 
culty. 

It is settled, that no part of the criminal jurisdiction of 
the United States can be delegated to state tribunals : and 
the admiralty and maritime jurisdiction is of the same 
exclusive cognizance. It, can only be in those cases 
where, previous to the Constitution, state tribunals pos- 
sessed jurisdiction independent of national authority, 
that they can now exercise a concurrent jurisdiction. 3 

§ 363. State courts may,4n the exercise of their or- 
dinary jurisdiction, incidentally take cognizance of cases 
arising under the Constitution, laws, and treaties of the 
United States : but the United States courts have ap- 
pellate jurisdiction. 

§ 364. Where the jurisdiction is concurrent, the sen- 
tence of either court, whether of conviction or acquittal, 
may be pleaded in bar of a prosecution before the 



1 1 Kent's Coram. 360. 2 Act of Sept. 1789, * lKent's 

Comm. 372 ; 1 Wheaton, 304, 



130 CONSTITUTION OF 

other. So also the judgment of a state court in a civil 
case of concurrent jurisdiction, may be pleaded in bar 
of an action for the same cause, instituted in a Circuit 
Court of the United States. 1 

§ 365. The conclusion then is, that in judicial mat- 
ters the concurrent jurisdiction of the state tribunals 
depends altogether upon the pleasure of Congress, and 
may be revoked and extinguished whenever they think 
proper, in every case in which the subject matter can 
constitutionally be made cognizable in the federal courts ; 
and that, without an express provision to the contrary, 
the state courts will retain a concurrent jurisdiction in 
all cases where they had jurisdiction originally over the 
subject matter." 2 

§ 366. Various acts of Congress give jurisdiction to 
state courts and magistrates in both civil cases and for 
fines and forfeitures under the laws of the United States ; 
but the state courts are not bound to assume jurisdic- 
tion in such cases. 3 

§ 367. It has been questioned whether the state 
courts could issue a Habeas Corpus, and exercise juris- 
diction in a case where the imprisonment was by an 
officer of the United States, or under pretext of the 
authority of the United States. The state courts, how- 
ever, have exercised such jurisdiction, although no final 
decision has been had upon the question. 4 

§ 368. No state court can issue an injunction upon 
any judgment in a court of the United States : 5 nor can 
the state legislature annul the judgments, or destroy the 
rights acquired under them, or determine the extent of 
their jurisdiction. 6 Nor can a state court, or authority, 
prescribe the rules or forms of proceedings, nor effect 
of process in the courts of the United States : 7 nor issue 

1 5 Wheaton, 1. 2 1 Kent's Comm. 374. 3 Idem. 375. 

* Idem ; 10 Johnson's Rep. 328 ; 5 Hall's Law Journal, 82 ; 11 
Mass. Reports, 68. 5 3 Story's Comm. 624 ; 7 Cranch, 279. 

6 5 Cranch, 115. 7 10 Wheaton, 21, 22, 51. 



THE UNITED STATES. 131 

a mandamus to an officer of the United States to com- 
pel him to perform duties devolved upon him by the 
laws of the United States. 1 

§ 369. On the other hand, the national courts have 
no authority (in cases not within the appellate jurisdic- 
tion of the United States), to issue injunctions upon 
judgments in the state courts ; or in any manner to in- 
terfere with their jurisdiction and proceedings." 2 

§ 370. It is a question unsettled, whether the United 
States courts have a Common Law jurisdiction 1 In the 
case of the United States vs. Hudson & Goodwin, 3 
tried for a libel on the President, the Supreme Court 
decided, by a majority, that they had no Common Law 
jurisdiction. In the case of the United States vs. 
Coolidge, 4 the Circuit Court for Massachusetts decided 
it had such jurisdiction in admiralty cases. The Su- 
preme Court, however, adhered to their former opinion. 
In consequence of this division, and the opinions of dif- 
ferent commentators, this point is not wholly settled. 5 

§ 371. Another extensive subject of discussion in the 
courts of the United States, is the admiralty and mari- 
time jurisdiction of the District Courts. 

The District Courts act as courts of Common Law, 
and also as courts of admiralty. In England a differ- 
ence existed between the Instance and Prize Courts. 
The former is defined 6 to be the ordinary admiralty 
court, and the latter an extraordinary one, having juris- 
diction only in time of ivar, and in prize cases. In the 
United States, however, the Supreme Court have de- 
termined that the District Courts have all the powers of 
courts of admiralty, whether as instance or prize 
courts. 7 

§ 372. Chancellor Kent, who has made law classical 
in our country, has given a brief review of the powers 

1 6 Wheaton, 598. 2 3 Story's Commentaries, 626. 

3 7 Cranch, 32. 4 1 Gallison, 188. 5 1 Kent's Comm. 315. 
6 Idem. 331. 7 3 Dallas, 6. 



132 CONSTITUTION OF 

of these courts, which nray be stated in the following 
propositions. 

1. As to the jurisdiction of Prize Courts. The prize 
jurisdiction extends to all captures in war made on the 
high seas. Prize goods are goods taken on the high 
seas by right of war, out of the hands of the enemy. 1 
The prize jurisdiction also extends to captures in foreign 
ports and harbours, and to captures made on land by 
naval forces. It extends to captures made in rivers, 
ports, and harbours of the captors' own country. The 
prize court extends also to all ransom bills upon cap- 
tures at sea, and to money received as ransom or com- 
mutation on a capitulation to naval forces. 2 

§ 373. If the prize be unwarrantably carried into a 
foreign port, and there delivered by the captors upon 
security, the prize court does not lose its jurisdiction 
over the capture and the questions incident to it. So, 
if the prize be lost at sea, or actually lying within a 
foreign neutral territory, the court has jurisdiction. 3 
Prize courts act upon the thing instead of the person, 
and that notwithstanding any contract between the 
parties. 4 Prize courts have likewise exclusive juris- 
diction and discretion as to the allowance of freight, 
damages, expenses, and costs in all cases of capture, and 
as to all torts and personal injuries connected with 
captures. 5 

2. Criminal Jurisdiction of the Admiralty. The Act 
of September, 1789, gives to the District Courts, exclu- 
sive of the State Courts, and concurrent with the Cir- 
cuit Courts, jurisdiction over crimes and offences cog- 
nizable by the authority of the United States, and com- 
mitted within their districts, or upon the high seas, where 
only a moderate corporal punishment, or fine, or im- 
prisonment is to be inflicted. As this confers jurisdie- 

1 1 Kent's Comm. 334. 2 Idem. 335. 3 ia em . 336. 

< Id. 337. 5 Id. 



THE UNITED STATES. 133 

tjon only in minor crimes, it was a question whether the 
■courts had any jurisdiction over cases of murder, &c. 
In the case of the United States against M'Gill, 1 it was 
decided they had not. The same was decided in 
United States vs. Bevans. 2 It is now settled, that the 
federal courts, as courts of admiralty, are to exercise 
such criminal jurisdiction as is conferred upon them ex- 
pressly by acts of Congress, and they are not to exer- 
cise any other. 3 

This limitation, however, does not extend to private 
prosecutions in the District Court to recover damages 
for a marine tort. 

§ 374. 3. As to the division between the jurisdiction of 
the Admiralty and the courts of Common Laiv. 

On the sea-shore, the jurisdiction of the admiralty is 
limited to low-water mark, 4 and between that and high- 
water mark, where the sea ebbs and flows, the common 
law and admiralty have a divided jurisdiction. 

§ 375. In the Circuit Court of the United States it 
has also been decided, that the admiralty jurisdiction 
extends to all maritime contracts, torts, injuries, and 
offences on the high seas, and in ports and havens, as 
far as the ebb and flow of the tide. 5 

It has been asked what cases come within the mean- 
ing of admiralty, and what of common law jurisdiction 1 
It is now settled that all seizures under laws of import, 
navigation, and trade, if made upon tide-waters naviga- 
ble from sea, are civil cases of admiralty jurisdiction. 6 

§ 376. The admiralty and maritime jurisdiction of 
the District Courts is exclusive. The Constitution ex- 
tends the judicial authority of the United States to all 
cases of admiralty jurisdiction, and the act of Congress 
enacts, that the District Courts shall have exclusive ori- 



1 4 Dallas, 426. 2 5 Wheaton, 76. 3 1 Kent's Com- 

mentaries, 341, 4 ij em# 343 5 2 Gallison, 398. 

« 1 Kent's (Jornm. 349. 

M 



134 CONSTITUTION OF 

ginal cognizance of all civil causes of admiralty and 
maritime jurisdiction. 

4. Jurisdiction of the Instance Courts. 

§ 377. The Instance Courts take cognizance of 
crimes committed, and things done, and contracts not 
under seal, made on the bosom of the sea. l The cause 
must arise wholly upon the sea to be within the admiralty 
jurisdiction. If the act be done partly on land and partly 
on water, the Common Law has the preference. 

^ 378. The admiralty has cognizance of maritime 
hypothecations 2 of vessels and goods in foreign ports, for 
repairs done, or necessary supplies furnished. 

§ 379. If the admiralty has cognizance of the prin- 
cipal thing, it has also of the incident. Thus, goods 
taken by pirates and sold on land, may be recovered 
from the vendee by suit in admiralty. 

The proceedings in admiralty are according to the 
course of the civil law, and are brief and simple. 3 

§ 380. " The Supreme Court shall have appellate 
jurisdiction both as to law and fact." This clause was, 
at first, supposed to confer the power of reviewing the 
verdicts of juries on matters of fact. This was not, 
however, the case. " The real object of the provision 
was to retain the power of reviewing the fact as well 
as the law in cases of admiralty and maritime jurisdic- 
tion." 4 This subject is now settled conclusively by an 
amendment to the Constitution, in the following words : 

" In suits at Common Law, where the value in con- 
troversy shall exceed twenty dollars, the right of trial 
by jury shall be preserved ; and no fact tried by jury 
shall be otherwise re-examined in any court of the 
United States than according to the rules of the Com- 
mon Law." 

This at once prohibits the re-examination of facts 
already tried by jury in any other manner. 

i 1 Kent's Coram. 352. 2 Idem. 3 Idem. 354 ; 3 Story's 
Comm. 629. 4 3 Peters's Rep. 446. 



THE UNITED STATES. 135 

The only modes known to the Common Law to re- 
examine such facts are — 1st. The granting a new trial 
by the court where the issue was tried, and 2d, by a 
Writ of Error, for an error in hiv, by some appellate 
court ; neither of these includes the power of re-exam- 
ining facts already tried by another court. 

§ 381. The appellate jurisdiction is to be with such 
exceptions and regulations as " the Congress shall pre- 
scribe." But here a question is asked, whether the ju- 
risdiction attaches to the Supreme Court in its own na- 
ture, to be modified by Congress, or whether an act of 
Congress is necessary to confer that jurisdiction 1 If 
Congress have the power they may repeal it, and thus 
destroy the whole efficacy 1 of the court. It was form- 
erly decided by the Supreme Court, that if Congress 
provided no rule to regulate their proceedings, they 
could exercise no jurisdiction^ That decision has, how- 
ever, been since overruled, and it is asserted by the Su- 
preme Court, that without any limitation of powers by 
an act of Congress, it must possess all the jurisdiction 
which the Constitution assigns it. The appellate powers 
of the Supreme Court are given by the Constitution, and 
not by the judicial act. 2 But they are regulated and 
limited by that act. 

§ 382. There are certain i7icidental powers which are 
attached to all courts without the necessity of an en- 
actment. 

The functions of the judges are strictly judicial. 
They cannot be called upon to advise the President, or 
to give extra-judicial opinions, or to act as commission- 
ers, or other like matters. 

Thus also the courts have power over their own offi- 
cers, and the power to protect them and their members 
from being disturbed in the exercise of their functions. 
All courts have the power to attach for contempts, and 
by means of this they can protect themselves. 

1 3 Story's Comm. 648. ^6 Cranch, 307, 313. 



136 CONSTITUTION OF 

§ 383. 3d clause. The trial of all crimes, except in 
cases of impeachment, shall be by jury ; and such trial 
shall be held in the state where the said crimes shall 
have been committed. But when not committed within 
any state, the trial shall he at such place or places as 
the Congress may by law have directed. 

§ 384. In connexion with this must be taken the 
amendments on the same subject, as follows : 

Amendment 5th. No person shall be held to answer 
for a capital, or otherwise infamous crime, unless on a 
presentment? or indictment of a grand jury, except in 
cases arising in the land or naval forces, or in the 
militia when in actual service, in time of war or public 
danger ; nor shall any person be subject, for the same 
offence, to be twice put in jeopardy of life or limb ; nor 
shall be compelled in any criminal case to be a witness 
against himself; nor be deprived of life, liberty, or 
property without due process of law ; nor shall private 
property be taken for public use without just compensa- 
tion. 

§ 385. Amendment 6th. In all criminal prosecutions, 
the accused shall enjoy the right to a speedy and public 
trial, by an impartial jury of the state and district 
wherein the crime shall have been committed ; 

§ 386. The right to a trial by jury is of very ancient 
date. It was firmly established, however, in the 
Magna Charta, granted at Runneymede. 1 In that 
instrument it is declared, that no freeman shall be in- 
jured in person or property except by the judgment of his 
peers, or the law of the land. From that time to this it 
has descended unimpaired through the governments of 
England and this country. It is esteemed, and cor- 
rectly, the most precious right of freemen ; for it en- 
ables them to appeal from the arbitrary judgments of 
either governments or individuals, to the disinterested 
verdicts of their equals. The term peers means equals^ 

1 3 Blackstone, 350. 



THE UNITED STATES. 137 

and a judgment by his peers is one by his equals. The 
verdict, then, is given by those who are not only neigh- 
bours, but taken from the same rank and circumstances 
of life, and influenced by all the sentiments of justice or 
humanity which may be supposed to actuate persons 
placed in similar situations, and liable to the same con- 
tingencies. 

§ 387. The trial of all crimes must also be in the 
state where it is committed. This is tou avoid the diffi- 
culty, expense, and oppression which might happen 
from being carried into other states, and before foreign 
tribunals. 1 

Before a person can be tried for a crime, he must first 
be charged by a Grand Jury with the offence. This 
charge is in the form of a presentment, ox indictment. A 
Grand Jury is a number of men, not less than twelve, 
nor more than twenty -three, of whom twelve must agree 
in the charge, selected in the manner of other juries, 
from the body of the people within the county where 
they are summoned. 2 They are sworn to make diligent 
inquiry of all offences committed against the authority 
of the government and the peace of the state within the 
body of their county. In the United States Courts they 
are sworn to inquire and present all offences against the 
national government, and within its jurisdiction. When 
the grand jury are assembled, the proper officer, com- 
monly the District Attorney for the state, lays before 
them all the offences of which he has any knowledge, 
and the evidence by which the charges against the pris- 
oners are supported. They examine this carefully, and, 
if they find the testimony probable, and sufficient to in- 
duce a rational belief in the charges, they find what is 
called a bill, or an indictment, and indorse on it JL true 
bill. This bill or indictment is a formal charge of the 
offence against the prisoner, usually drawn up by the 

1 3 Story's Comm. 655. 2 4 Blackstone, 302. 

M2 



138 CONSTITUTION OF 

attorney for the state. If the grand jury do not find 
the bill true, they indorse on it " Not a true bill" and 
the prisoner is discharged ; but a new bill may be found 
by a new jury. 1 The indictment must charge person, 
time, place, and nature of the offence with clearness 
and certainty ; otherwise it will be void for uncertainty. 

§ 388. It is also provided, that no person shall be 
twice put in jeopardy of life or limb for the same of- 
fence. The meaning is, that no person shall be twice 
tried for the same offence : it is also added, that this 
can only be pleaded when there has been an actual ver- 
dict and judgment, and not when the jury have been 
dismissed for want of agreement, or a new trial 
granted. 2 

§ 389. No person can be compelled to be a witness 
against himself, or be deprived of life, liberty, or prop- 
erty, without process of law. This is merely an affirm- 
ance of the Common Law, as is also the former pro- 
vision. In fact, nearly the whole of these amendments 
in relation to trial by juries, were common law privileges, 
but inserted, no doubt, for more absolute certainty, and 
that no doubt should ever be permitted to enter the 
minds, as to this subject, of either lawgivers or judicial 
expositors. 

§ 390. One of these re-enactments of the CommoiP 
Law is, that no private property shall be taken for pubac 
use without just compensation : yet plain justice as this is, 
it is frequently violated in this country by indirect 
means, and shows how difficult it is to preserve private 
rights when the people at large are interested against 
them : thus, private land is frequently taken for public 
works, streets, highways, canals, &c. ; the owners are 
remunerated by an appraised valuation, not of what the 
property is worth in itself, but with the additional cir- 
cumstance of its increased value, by an improvement 

! • 3 Story's Comm. 658. 2 Id. 659, 



THE UNITED STATES. 13$ 

which the owner never derived, and in his judgment, is 
injurious to his interests. The plain rule of justice is 
to pay the actual value, without reference either to the 
increase or diminution of value in the residue. 

§ 391. The trial by jury is public, in the presence of 
both the prisoner and the witnesses. The accused is enti- 
tled to compulsory process to obtain witnesses, and is also 
entitled to have counsel. This provision was inserted be- 
cause by the ancient common law the prisoner had not 
that privilege, but acquired it by a statute of William 
and Mary. 1 Indeed, the criminal jurisprudence of Eng- 
land, previous to that time, was, except the trial by 
jury, conducted with the greatest disregard of justice. 
Neither had the prisoner the benefit of counsel, though, 
as the maxim ran, the judge is his counsel, and bound 
to see him have equal advantages with the accuser. 
This discreditable injustice on the part of the Common 
Law is, however, entirely done away by these provisions 
of the Constitution. 

SECTION III. 

§392. 1st clause. Treason against the United States 
shall consist only in levying war against them, or in 
adhering to their enemies, giving them aid and comfort. 
No person shall be convicted of treason unless on the 
testimony of two witnesses to the same overt act, or on 
confession in open court. 

2d clause. The Congress shall have power to declare 
the punishment of treason ; but no attainder of treason 
shall work corruption of blood, or forfeiture, except 
during the life of the person attainted. 

Treason is some act whose object is the overthrow of 
the government : hence it is the highest crime against 
society, and universally regarded with odium and resent- 
ment. The definition of what is treason, and what is- 

1 8 Story's Comm. 663. 



140 CONSTITUTION OF 

necessary to conviction, is of vast importance to the peace 
of society, and the liberty of the citizen. Constructive 
or implied treason, from suspicious circumstances, is 
dangerous wherever it exists. In the reign of Edward 
III. in England, a statute was passed declaring and 
defining treason and its different branches. 1 This was 
confirmed by the statute of Mary I.. Our Constitution 
has used the very words of this statute, and thus adopted 
its definition, with the interpretation which it has re- 
ceived during several centuries. The war must be 
actually levied to constitute treason. A conspiracy to 
levy war is not treason. 2 

§ 393. The punishment of treason in our country is 
simply death by hanging ; at the Common Law it was 
accompanied by many barbarities, which would not 
now be tolerated. 

§ 394. By corruption of blood is meant the destruction 
of all inheritable qualities ; — so that no one can claim 
any thing from a person attainted, or through him. A 
son could not claim from a grandfather, deriving title 
through a father that was attainted. 3 

§ 395. A state cannot take cognizance of or punish 
the crime of treason 4 against the United States. 

1 Hawkins, p. 6, book I. chap. 1-7. 2 4 Cranch, 126. 

3 3 Story's Comm. 171. 4 Idem. 173. 



THE UNITED STATES. 141 

ARTICLE IV. 

MISCELLANEOUS. 

SECTION I. 

§ 396. Full faith and credit shall be given in each 
state to the public acts, records, and judicial proceed- 
ings of every other state. And the Congress may, by 
general laws, prescribe the manner in which such acts, 
records, and proceedings shall be proved, and the effect 
thereof 

§ 397. The laws and acts of foreign nations are not 
judicially taken notice of by other nations, but must be 
proved, like other facts, when they come under exami- 
nation. The mode of proof varies in different countries. 
As to the effect to be given foreign judgments, all civil- 
ized nations are agreed they shall have some effect, but 
what, they are not agreed upon. In England and the 
United States, foreign judgments are what is called 
prima facie evidence of what they decide. This means 
that they shall be taken as true till the contrary is 
proved. A domestic judgment, however, is true conclu- 
sively, and cannot be contradicted. 

§ 398. The full faith and credit mentioned in the 
Constitution was inserted to place the judgments of the 
different states upon a different footing from those of 
foreign nations. The latter were already prima facie 
evidence ; the former then must be conclusive. They 
have absolute verity, so that they cannot be denied any 
more than in the state where they originated. 1 If a 
judgment is conclusive in the state where it is pro- 
nounced, it is conclusive everywhere ; if re- examinable 

1 3 Story's Comm. 180 ; 1 Peters' C. R. 74, 80 



142 CONSTITUTION OF 

there, it is so elsewhere. It is placed upon the same 
ground as a domestic judgment. 

SECTION II. 

§ 399. 1st clause. The citizens of each state shall 
he entitled to all privileges and immunities of citizens 
in the states. 

2d clause. A person charged in any state with trea- 
son, felony, or other crime, who shall flee from justice 
and be found in another state, shall, on demand of the 
executive authority of the state from which he fled, be 
delivered up to be removed to the state having jurisdic- 
tion of the crime. 

3d clause. No person held to service or labour in one* 
state, under the laws thereof, escaping into another, shall, 
in consequence of any latv or regulation therein, be dis- 
charged from such service or labour, but shall be de- 
livered on claim of the party to whom such service or 
labour may be due. 

§ 400. The object of the first part of the clause is plain 
enough. If each citizen was not a citizen of the United 
States in other states, then the states would be com- 
pletely foreign to each other, and their citizens aliens in 
each other. This clause makes each citizen of a state 
a citizen of the United States, and as such confers on 
him rights and privileges throughout the whole Union. 

§ 401. The subject of delivering up fugitives from 
justice is one which among different nations has involved 
some doubts. In the United States, however, it is firmly 
fixed by the above provision, which requires them 
always to be given up to those who have a right to 
require it. 

§ 402. The next clause, relative to persons held to 
service or labour, plainly refers to the slaves of the 
southern states who may take refuge in the non-slave- 
holding states. The delivery 1 in the case of fugitives 
and slaves is to be made, not after a full trial, which 
would manifestly defeat the end in view ; but after a 
1 3 Story's Comm. 677, 



THE UNITED STATES. 143 

summary investigation before a magistrate, in which it 
shall appear probable that the circumstances charged are 
true. By an act of Congress, 1793, it is provided that 
such proof may be made before any magistrate, by the 
principal or his attorney, and may be either by affidavit 
or oral testimony to his satisfaction. The magistrate is 
then authorized to give a certificate of the facts to the 
party or his agent, which certificate is sufficient warrant 
of removal. Heavy penalties are laid on those who 
hinder or resist such proceedings, or harbour any of the 
fugitives or slaves. 

SECTION III. 

§ 403. 1st clause. Neiv states may be admitted by the 
Congress into this Union ; but no new state shall be formed 
or erected within the jurisdiction of any other state; nor 
any state be formed by the junction of two or more states, 
or parts of states, ivithout the consent of the Legislatures 
of the states concerned, as well as of the Congress. 

2d clause. The Congress shall have power to dispose 
of and make all needful rules and regulations respecting 
the territory, and other property belonging to the United 
States; and nothing in this Constitution shall be so 
constmed as to prejudice any claims of the United States, 
or* of any particular state. 

§ 404. These two clauses are the foundations upon 
which Congress erect and administer the territorial 
governments, and subsequently admit them into the 
Union. Under the old confederation, no such provision 
existed ; and so little anticipation was had of the growth 
and prosperity of those wild regions whose population 
and territory have since nearly doubled the states, and 
more than quadrupled their strength, that no provision 
existed on the subject of forming or admitting new states. 
Since the adoption of the Constitution, however, eleven 
new states have been added to the Union, and three terri- 
tories will soon still farther increase that number. The 
power given by the Constitution to do this is one of the 



144 CONSTITUTION OF 

new principles introduced into our system, and is perhaps 
the most anomalous and most influential upon its future 
destiny of any. The principle is simply this, that a 
colony settled upon an adjacent territory, and within the 
jurisdiction of the United States, whether it be composed 
of citizens of the Union or emigrants from foreign nations, 
Europeans, or Asiatics, shall, on enumerating a specific 
population, be admitted to equal rights, privileges, and 
powers with the original states. This principle is like- 
wise unlimited in respect to the number, distance, or 
settlement of the colonies. The consequence is, that 
the original states may ultimately, as they soon must, 
be left in a minority as to power in that government 
which they formed, and of which they were the sole 
possessors. They make the whole world partners with 
themselves in an inheritance of liberty and power and 
wealth. The grant thus made to the world of an asylum 
for all mankind is noble and benevolent, and the more 
so, as it seems to have had no former example among 
nations. It may be said, that the states thus added are 
not foreign : it is true they were not conquered, but they 
are just as subversive of the powers of the old states as 
if they had been taken from foreign countries. In the 
case of Louisiana, which was purchased, it was the 
accession of foreign territory ; and at the time the Ter- 
ritory of Orleans was erected into a state, its inhabitants 
were almost wholly Spanish and French. In the same 
manner, the territory of Florida is an accession from 
a foreign country ; and so also, should the government 
hereafter acquire any district or territory whatever, 
according to the existing laws, it would first become an 
organized territory of the United States, and then*a state. 
No such policy as this was ever adopted by any other coun- 
try, and it succeeds and could succeed only by that nice 
system of balances and toleration, by which one sect, or 
party, or state is constantly checked by others, and the 
elements of discord and opposition kept from any general 
union against the laws and the government. 



THE UNITED STATES. 145 

§ 405. In respect to the formation of states and the 
territorial governments, the power was exercised by 
Congress before the Constitution was formed, and with- 
out any article in the confederation to authorize it. The 
whole of what was called the North-western Territory, 
ceded by Virginia to the United States, and out of 
which has been carved the states of Ohio, Indiana, 
Illinois, and the territory of Michigan, — was placed 
under a territorial government, and governed by the 
ordinance of 1787. 1 That ordinance was, in many re- 
spects, wisely drawn, and has had great, and not less cer- 
tain because unseen influence, upon the prosperity and 
happiness of that immense and now populous district. 2 

§ 406. The articles of compact solemnly tendered to 
the people of the states about to be formed, and thus far 
accepted by them, — contained some remarkable pro- 
visions. Among these articles are, 

1st, An agreement that said territory, and the states 
which may be formed therein, shall for ever remain apart 
of this confederacy, subject to the articles of confedera- 
tion, and to such alterations as may be made therein. 
This part of the compact, as will be seen hereafter, has 
an important bearing upon the recently agitated question 
of secession. 

2d. And it is further provided that there shall be neither 
slavery nor involuntary servitude in the said territory. 

3c?, And farther, that whenever any of the said terri- 
tories shall contain sixty thousand free inhabitants, it 
shall be admitted into the Union upon an equal footing 
with the original states. 

1 Act of Congress, 1787. 

2 Note. — The North-west Territory, ceded by Virginia to the 
United States, and included within the ordinances of 1787, con- 
tained the states of Ohio, Indiana, Illinois, and the Territory of 
Michigan. They now contain more than 1,500,000 inhabitants, 
and have derived the whole vigour and spirit of their institutions, 
and the direction of their policy and views, from the ordinance 
above cited. How important and lasting are the acts of early 
legislators ! 

N 



146 CONSTITUTION OF 

§ 407. The power of Congress over the public terri- 
tory is exclusive and universal, except so far as they are re- 
strained by stipulations in the cessions, or by the ordinance 
of 17S7. 1 This is not the case, however, with merely 
national property, such as forts and arsenals, where the 
states have not ceded the jurisdiction : in such cases, the 
jurisdiction of the state continues; subject, however, to 
the just exercise of the proper powers of the national 
government. 

§ 408. In the year 1820, upon the admission of the 
state of Missouri into the Union, a question was raised 
whether a clause restricting the admission of slaves into 
the state was constitutional. That question was not 
directly decided, but it was indirectly by the act passed, 2 
which declared that, in all the territory north of lat. 36° 
30', not included within the limits of Missouri, slavery 
and involuntary servitude should for ever be prohibited. 

§ 409. The question may, however, be considered as 
settled long before by the enactment of the ordinance 
of 1787, under the confederation, and the subsequent 
adoption and continuance of its provisions under the 
Constitution. 

§ 410. An objection involving the same principle was 
made to the compact between Virginia and Kentucky, 
but at once overruled by the Supreme Court. 3 

SECTION IV. 

The United States shall guaranty to every state in 
this Union a Republican form of government, and shall 
protect each of them against invasion, and, on the appli- 
cation of the Legislature, or of the Executive (when the 
Legislature cannot be convened), against domestic 
violence. 

This clause was unanimously adopted by the con- 
vention, and seems essential to the well-being of the 
republic, because the whole republic could not exist, if 

1 3 Story's Comm. 198. 2 Act of Congress, March 6, 1820. 
3 Greene. Biddle, 8 Wheaton, 1, 87, 88. 



THE UNITED STATES. 147 

a different form of government was allowed to exist in 
either one of the states. This clause is intended to pre- 
vent such a change either by a powerful faction, a 
rebellion, or any other cause. 



ARTICLE V. 

§411. The Congress, whenever two-thirds of both 
Houses shall deem it necessary, shall propose amend- 
ments to this Constitution, or, on the application of the 
legislatures of two-thirds of the several states, shall 
call a convention for proposing amendments, which, in 
either case, shall be valid to all intents and purposes, as 
part of this Constitution, when ratified by the legisla- 
tures of three-fourths of the several states, or by con- 
ventions in three-fourths thereof, as the one or the other 
mode of ratification may be proposed by the Congress ; 
provided that no amendment, ivhich may be made prior 
to the year one thousand eight hundred and eight, shall 
in any manner affect the first and fourth clauses in the 
ninth section of the first article; and that no state, with- 
out its consent, shall be deprived of its equal suffrage 
in the Senate. 

§ 412. This article provides that amendments may 
be made to the Constitution, and also points out the 
manner of making them. From this two things follow : 

1st. That amendments made in accordance with the 
provisions of this article, become of the same binding 
authority as if they had formed a part of the original 
instrument. 

2d. That no amendment can be made except in the 
way here pointed out. 

§ 413. There are three limitations to the power of 
making amendments : 

1st. That the prohibition of Congress to pass any law 
prior to the year eighteen hundred and eight, forbidding 
the introduction of slaves, should not be removed. 



148 CONSTITUTION OF 

2d. That the mode of levying a capitation or direct 
tax should not be changed so long as slave property 
could be increased by importation. 

3d. That no state should be deprived, without its 
consent, of its equal representation in the Senate. 

The first restriction was adopted as a matter of com- 
promise, and to ensure, for a limited time, the continu- 
ance of a profitable traffic. The second necessarily 
grew out of the first ; for it would obviously have been 
unjust to change the mode of laying taxes while the 
property exempted from taxation could have been in- 
creased at pleasure, by importation. The third restric- 
tion was intended to ensure to the lesser states an ef- 
fective safeguard against encroachments from the larger; 
and being placed in the Constitution itself, it cannot be 
broken down. 



ARTICLE VI. 

§ 414. 1st Clause. All debts contracted, and engage- 
ments entered into, before the adoption of this Constitu- 
tion, shall be as valid against the United States, under 
this Constitution, as under the Confederation. 

The obligations between a nation and private indi- 
viduals remain the same, whatever changes the form of 
government may undergo. 1 

§ 415. 2d Clause. This Constitution, and the laws of 
the United States, which shall be made in pursuance 
thereof, and all treaties, made, or which shall be made 
under the authority of the United States, shall be the su- 
preme law of the land ; and the judges in every state 
shall be bound thereby ; any thing in the Constitution, 
or laws of any state to the contrary notwithstanding. 

fy 416. The necessity of this provision is obvious 
enough. If the Constitution were not the supreme law 

1 Federalist, 43. 



THE UNITED STATES. 149 

of the land it would not be a Constitution ; it would be 
a nullity : its supremacy makes a part of the instrument 
itself; yet it was necessary to declare it, in order that 
all might understand it, and no room be left for contro- 
versy. Treaties are supreme laws till repealed by the 
legislature of the nation : the Legislature has such 
power, though war may be the consequence of its exer- 
cise. 1 . Treaties are compacts with foreign nations, and 
must be observed, or the national faith is violated. 

§ 417. The laws of the United States, if made in 
pursuance of the Constitution, are as valid as the Con- 
stitution, and of course also the supreme law. To 
these provisions it is added, " any thing in the Constitu- 
tion, or laws of any state to the contrary notwithstand- 
ing.^ This clause gave no additional force to the fore- 
going provisions, but made them clearer to those who 
administer the laws. Another thing clearly appears 
from the whole clause, that the Constitution makes the 
national government supreme over the state constitution 
and laws in all cases in which they may come in con- 
flict. As the Constitution is thus supreme, every court 
has the power to declare unconstitutional laws void, 
when properly before them. 2 

§ 418. 3d Clause. The senators and representatives 
before mentioned, and the members of the several state 
legislatures, and all executive and judicial officers, both 
of the United States and of the several states, shall be 
bound by an oath, or affirmation, to support this Consti- 
tution ; but no religious test shall ever be required as a 
qualification to any office or public trust under the 
United States. 

§ 419. This oath is required in all civilized na- 
tions from the officers of government ; it is the most 
solemn obligation men can be placed under, and it is 
right to require it of them in a class of duties as im- 

1 2 Cranch, 1 ; 3 Story's Comm. 695. 2 1 Kent's Com- 

mentaries, 420. % 

N2 



150 CONSTITUTION OF 

portant as any that can be performed in a social state. 
It is to be remarked, that this oath is required of all 
state, as well as national oflicers ; for the agency of 
state officers is required to carry on the national gov- 
ernment, and they are accordingly required to give their 
obligations to perform it. 

§ 420. In June, 1789, Congress passed an act 1 pre- 
scribing the time and manner of taking the oath or af- 
firmation, as well by the officers of the several states 
as of the United States. Some doubts were enter- 
tained of its constitutionality, but it was approved, and 
no doubt is now had upon it. 2 

§ 421. The clause which enacts that no religious 
test shall ever- be required for any office of trust or 
profit, is one of the most peculiar, as well as valuable 
parts of the Constitution. This is believed to be the 
only government in the world which permitted perfect 
toleration, and the experience of half a century has 
proved that it offers no hinderance to any, while it 
affords protection to all religious sects. While this 
exists, there can be no union of Church and Slate, — a 
union fatal to both, and disastrous to the welfare of the 
people. Yet Christianity flourishes and extends in the 
United States with the growth of the people, and the 
very emulation of the different sects contributes to the 
prosperity of the whole. 



ARTICLE VII. 

§ 422. The ratification of the conventions of nine 
states shall be sufficient for the establishment of this 
Constitution between the states so ratifying the same. 

At the formation of the Constitution, there were thir- 
teen states ; nine of these ratified it immediately, three 

' Act 1st June, 1289. 2 4 Elliott's Debates, 139 ; 4 Whca- 
ton's Rep. 415. 



THE UNITED STATES. 151 

after the lapse of a few months, and the state of Rhode 
Island not till more than a year afterward. The instru- 
ment was, however, perfect by the ratification of nine, 
and if the others had not acceded, they would have 
stood in the relation to them of foreign nations. Since 
that period, eleven others have joined the union, and the 
whole form one great nation under a common govern- 
ment. 



AMENDMENTS. 1 

§ 423. Upon the adoption of the Constitution, strong 
objections were made to it on account of some sup- 
posed deficiencies. Among others, the want of a Bill 
of Rights was strongly urged, to which it was justly 
replied that the Constitution itself was a bill of rights. 
The people, in their conventions, however, finally 
thought best to accede to the Constitution, and urge upon 
Congress the proposal of several amendments. Ac- 
cordingly the amendments we have already mentioned, 
those following, and some that were not adopted, were 
recommended by many of the states to Congress, and 
by Congress to the people. 

AMENDMENT I. 

§ 424. Congress shall make no law respecting an 
establishment of religion, or prohibiting the free exer- 
cise thereof; or abridging the freedom of speech, or of 
the press ; or of the right of the people peaceably to 
assemble, and to petition the government for a redress 
of grievances. 

The first clause was undoubtedly meant to prohibit 
Congress from interfering in any manner between dif- 
ferent sects of Christianity, and not to encourage any 
other religion. For nearly all the old states had laws 
for the encouragement of religion ; at the same time, 
Congress has no power to do the slightest positive act 
to sustain or prohibit any religion whatever. It is a 



152 CONSTITUTION OF 

subject upon which they are forbidden to legislate. In 
this respect the United States Constitution is wholly un- 
like any other ever formed. It derives no aid from its 
connexion with religion, but leaves that to be settled by 
conscience and its God. 

§ 425. The next clause is, that Congress shall make 
no law abridging the freedom of speech or of the press. 
What is the freedom of speech and of the press 1 It 
is the right to speak and publish every thing in relation 
to every subject, which is not in derogation of private 
rights. No one has a right to injure his neighbour : 
this is the first law of nature, and everywhere pre- 
served in civil society ; of consequence, no one has a 
right to speak or publish what will injure another ; 
hence the law of slander and of libel. Within these 
limits it is not perceived that there is any restraint upon 
the liberty either of speech or of the press. 

§ 426. The next clause is, the people shall have 
the right peaceably to assemble and petition for a re- 
dress of grievances. This seems to have been alto- 
gether a work of supererogation ; for the right of the 
people to assemble, either to petition, or for any other 
purpose, arises necessarily from the form of govern- 
ment. 

AMENDMENT II. 

§ 427. A well regulated militia being necessary to 
the security of a free state, the right of the people to 
keep and bear arms shall not be irifringed. 

The term militia is a Latin word, and signifies the 
being a soldier. In our country it is applied only to that 
species of soldiery which is composed wholly of en- 
rolled citizens, held ready for service, but not actually 
under arms. It is scarcely necessary to say, that the 
right of the people thus to bear arms is the -founda- 
tion of their liberties ; for, without it, they would be 
without any power of resistance against the existing 
government. 



THE UNITED STATES. 153 

AMENDMENT III. • 

§428. No soldier shall, in time of peace, be quar- 
tered in any house without the consent of the owner, nor 
in time of war, but in a manner to be prescribed by law. 

It was an easy mode of oppression, with arbitrary- 
princes, to quarter soldiers upon the people, so that they 
ate out their substance and ill treated their families. It 
was to prevent the possibility of such scenes in this coun- 
try that this provision was inserted in the Constitution. 

AMENDMENT IV. 

§ 429. The right of the people to be secure in their per- 
sons, houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated ; and no 
warrant shall issue but upon probable cause, supported 
by oath, or affirmation, and particularly describing the 
place to be searched, and the persons or things to be 
seized. 

Special warrants, such as here described, are the only 
warrants upon which an arrest can be made according 
to the law of England. 1 This provision, therefore, was 
in affirmance of the Common Law, and introduced into 
the Constitution for more abundant caution. 

§ 430. Amendments 5th, 6th, and 7th, in relation to 
the trial by jury, and the mode of indictment, we have 
already considered in -connexion with another part of 
the Constitution. 

AMENDMENT VIII. 

§ 431. Excessive bail shall not be required, nor ex- 
cessive fines imposed, nor cruel and unusual punish- 
ments inflicted. 

Excessive bail, and cruel punishments, were another 
class of means used by arbitrary governments to op- 
press the people ; hence the insertion of this amend- 
ment. 

1 3 Burrows's Rep. 1743 ; 4 Blackstone's Comm.,291, 292, 



154 CONSTITUTION OF 

• 

• It has been held that this clause applies only to pun- 
ishments inflicted by the national government, and not 
to those inflicted by the states. 1 

AMENDMENT IX. 

§ 432. The enumeration in the Constitution of cer- 
tain rights, shall not be construed to deny or disparage 
others retained by the people. 

This was merely meant to prevent the application to 
the Constitution of a maxim, that the affirmation of cer- 
tain things, in some cases, implies a denial of others. 

AMENDMENT X. - 

§ 433. The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the states, 
are reserved to the states respectively, or to the people. 

This provision follows of course, without express 
insertion, from the fact that the Constitution is an instru- 
ment of enumerated powers, and those not expressly 
given in it, or necessarily flowing from them, are re- 
tained by the original source of power, or invested in 
collateral and inferior governments. Now, what is this 
source of power ? The people. It must be recollected, 
that both national and state governments are formed 
by, and derive their authority from, the people ; hence, 
whatever powers they have not invested in the national 
government, must either be granted to the state govern- 
ments or retained by themselves ; therefore the words 
of the provision, " reserved to the states respectively, or to 
the people. 11 

§ 434. Amendment 11th, in relation to the judicial 
power, and 12th, in relation to the Presidential election, 
have been already considered. 

1 3 Cowen's New-York Rep. 686 ; 3 Story's Comra. 751. 



THE UNITED STATES. 155 



CONSTITUTION OF THE UNITED STATES. 



Preamble. 
We, the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, pro- 
vide for the common defence, promote the general welfare, and 
secure the blessings of liberty to ourselves and our posterity, do 
ordain and establish this Constitution for the United States of 
America. 

ARTICLE I. 

Of the Legislature. 

SECTION I. 

1. All legislative powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate 
and House of Representatives. 

SECTION II. 

1. The House of Representatives shall be composed of mem- 
bers chosen every second year by the people of the several states^; 
and the electors in each state shall have the qualifications 
requisite for electors of the most numerous branch of the state 
legislature. 

2. No person shall be a representative who shall not have at- 
tained to the age of twenty-five years, and been seven years a 
citizen of the United States, and who shall not, when elected, be 
an inhabitant of that state in which he shall be chosen. 

3. Representatives and direct taxes shall be apportioned 
among the several states which may be included within this 
union, according to their respective numbers, which shall be de- 
termined by adding to the whole number of free persons, includ- 
ing those bound to service for a term of years, and excluding In- 
dians not taxed, three-fifths of all other persons. The actual 
enumeration shall be made within three years after the first meet- 



156 CONSTITUTION OF 

ing of the Congress of the United States, and within every 
subsequent term of ten years,* in such manner as they shall by 
law direct. The number of representatives shall not exceed 
one for every thirty thousand, but each state shall have at least 
one representative ; and until such enumeration shall be made, 
the state of New-Hampshire shall be entitled to choose three ; 
Massachusetts, eight ; Rhode Island and Providence Plantations, 
one ; Connecticut, five ; New- York, six ; New-Jersey, four ; 
Pennsylvania, eight ; Delaware, one ; Maryland, six ; Virginia, 
ten ; North Carolina, five ; South Carolina, five ; and Georgia, 
three. 

4. When vacancies happen in the representation from any 
state, the executive authority thereof shall issue writs of election 
to fill such vacancies. 

5. The House of Representatives shall choose their speaker 
and other officers ; and shall have the sole ^ower of impeach- 
ment. 

SECTION III. 

1. The Senate of the United States shall be composed of two 
senators from each state, chosen by the legislature thereof, for 
six years ; and each senator shall have one vote. 

2. Immediately after they shall be assembled, in consequence 
of the first election, they shall be divided as equally as may be 
into three classes. The seats of the senators of the first class 
shall be vacated at the expiration of the second year, of the sec- 
ond class at the expiration of the fourth year, and of the third 
class at the expiration of the sixth year, so that one-third maybe 
chosen every second year; and if vacancies happen by resigna- 
tion or otherwise, during the recess of the legislature of any 
state, the executive thereof may make temporary appointments 
until the next meeting of the legislature, which shall then fill 
such vacancies. 

3. No person shall be a senator who shall not have attained to 
the age of thirty years, and been nine years a citizen of the 
United States, and who shall not, when elected, be an inhabitant 
of that state for which he shall be chosen. 

4. The Vice-President of the United States shall be President 
of the Senate, but shall have no vote, unless they be equally 
divided. 

5. The Senate shall choose their other officers, and also a 
president pro tempore, in the absence of the Vice-President, or 
when he shall exercise the office of President of the United 
States. 

6. The Senate shall have the sole power to try all impeach- 
ments : when sitting for that purpose, they shall be on oath or 
affirmation. When the President of the United States is tried, 
the Chief-Justice shall preside ; and no person shall be con- 



THE UNITED STATES. 157 

victed without the concurrence of two-thirds of the members 
present. 

7. Judgment in cases of impeachment shall not extend further 
than to removal from office, and disqualification to hold and enjoy 
any office of honour, trust, or profit under the United States ; 
but the party convicted shall nevertheless be liable and subject to 
indictment, trial, judgment, and punishment, according to law. 

SECTION IV. 

1. The times, places, and manner of holding elections for sen- 
ators and representatives, shall be prescribed in each state by the 
legislature thereof; but the Congress may at any time, by law, 
make or alter such regulations, except as to the places of choos- 
ing senators. 

2. The Congress shall assemble at least once in every year, 
and such meeting shall be on the first Monday in December, 
unless they shall by law appoint a different day. 

SECTION V; 
1. Each House shall be the judge of the elections, returns, an } 
qualifications of its own members, and a majority of each sha.! 
constitute a quorum to do business ; but a smaller number ni.v 
adjourn from day to day, and maybe authorized to compel t!. - 
attendance of absent members, in such manner and under sue . 
penalties as each House may provide. 

• 2. Each House may determine the rules of its proceeding , 
punish its members for disorderly behaviour, and, with the con- 
currence of two-thirds, expel a member. 

3. Each House shall keep a journal of its proceedings, a:~ ; 
from time to time publish the same, excepting such parts as m:v , 
in their judgment, require secrecy ; and the yeas and nays of I! . 
members of either House, on any question, shall, at the desire ^'' 
one-fifth of those present, be entered on the journal. 

4. Neither House, during the session of Congress, shall, wi- '.- 
out the consent of the other, adjourn for more than three d;n ;, 
nor to any other place than that in which the two Houses sh...i 
be sitting. 

SECTION VI. 

1. The senators and representatives shall receive a comper.r ;- 
tion for their services, to be ascertained bylaw, and paid oul . 
the treasury of the United States. They shall, in all cases < 
cept treason, felony, and breach of the peace, be privileged f i 
arrest during their attendance at the session of their respec 
Houses, and in going to and returning from the same ; an*,' '...'■ 
any speech or debate in either House, they shall not be questl. .uA 
in any other place. 

o 



15S CONSTITUTION OF 

2. No senator or representative shall, during the time for 
which he was elected, be appointed to any civil office under the 
authority of the United States, which shall have been created, or 
the emoluments whereof shall have been increased during such 
time ; and no person holding any office under the United States, 
shall be a member of either House during his continuance in 
office. 

SECTION VII. 

1. All bills for raising revenue shall originate in the House of 
Representatives ; but the Senate may propose or concur with 
amendments as on other bills. 

2. Every bill which shall have passed the House of Repre- 
sentatives and the Senate, shall, before it become a law, be pre- 
sented to the President of the United States ; if he approve, he 
shall sign it ; but if not, he shall return it, with his objections, to 
that House in which it shall have originated, who shall enter the 
objections at large on their journal, and proceed to reconsider it. 
If, after such reconsideration, two-thirds of that House shall 
agree to pass the bill, it shall be sent, together with the objections, 
to the other House, by which it shall likewise be reconsidered, 
and if approved by two-thirds of that House, it shall become a 
law. But in all such cases the votes of both Houses shall be 
determined by yeas and nays ; and the names of the persons 
voting for and against the bill shall be entered on the journal of 
each House respectively. If any bill shall not be returned by the 
President within ten days (Sundays excepted) after it shall have 
been presented to him, the same shall be a law, in like manner as 
if he had signed it, unless the Congress by their adjournment 
prevent its return, in which case it shall not be a law. 

3. Every order, resolution, or vote, to which the concurrence 
of the Senate and House of Representatives may be necessary 
(except on a question of adjournment), shall be presented to the 
President of the United States ; and before the same shall take 
effect, shall be approved by him, or being disapproved by him, 
shall be repassed by two-thirds of the Senate and House of Rep- 
resentatives, according to the rules and limitations prescribed in 
the case of a bill. 

section vm. 
The Congress shall have power — 

1. To lay and collect taxes, duties, imposts, and excises, to pay 
the debts and provide for the common defence and general wel- 
fare of the United States ; but all duties, imposts, and excises 
shall be uniform throughout the United States : 

2. To borrow money on the credit of the United States : 

3. To regulate commerce with foreign nations, and among the 
several states, and with the Indian tribes : 



THE UNITED STATES. 159 

4. To establish an uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies throughout the United 
States : 

5. To coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures : 

6. To provide for the punishment of counterfeiting the securi- 
ties and current coin of the United States : 

7. To establish post-offices and post-roads : 

8. To promote the progress of science and useful arts, by se- 
curing, for limited times, to authors and inventors, the exclusive 
right to their respective writings and discoveries : 

9. To constitute tribunals inferior to the supreme court : 

10. To define and punish piracies and felonies committed on 
the high seas, and offences against the law of nations : 

11. To declare war> grant letters of marque and reprisal, and 
make rules concerning captures on land and water : 

12. To raise and support armies ; but no appropriation of 
money to that use shall be for a longer term than two years.: 

13. To provide and maintain a navy : 

14. To make rules for the government and regulation of the 
land and naval forces : 

15. To provide for calling forth the militia to execute the laws 
of the Union, suppress insurrections, and repel invasions : 

16. To provide for organizing, arming, and disciplining the 
militia, and for governing such part of them as may be employed 
in the service of the United States, reserving to the states re- 
spectively the appointment of the officers, and the authority of 
training the militia according to the discipline prescribed by 
Congress : 

17. To exercise exclusive legislation in all cases whatsoever, 
over such district (not exceeding ten miles square), as may, by 
cession of particular states, and the acceptance of Congress, be- 
come the seat of the government of the United States ; and to 
exercise like authority over all places purchased by the consent 
of the legislature of the state in which the same shall be, for the 
erection of forts, magazines, arsenals, dock-yards, and other need- 
ful buildings : — And, 

18. To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other pow- 
ers vested by this Constitution in the government of the United 
States, or in any department or officer thereof. 

SECTION IX. 

1. The migration or importation of such persons as any of the 
states now existing shall think proper to admit, shall not be pro- 
hibited by the Congress prior to the year one thousand eight hun- 
dred and eight ; but a tax or duty may be imposed on such im- 
portation not exceeding ten dollars for each person. 



160 CONSTITUTION OF 

2. The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when in cases of rebellion or invasion the public 
safety may require it. 

3. No bill of attainder or ex post facto law shall be passed. 

4. No capitation or other direct tax shall be laid, unless in pro- 
portion to the census or enumeration herein before directed to be 
taken. 

5. No tax or duty shall be laid on articles exported from any 
state. 

6. No preference shall be given by any regulation of com- 
merce or revenue to the ports of one state over those of another : 
nor shall vessels bound to, or from one state, be obliged to enter, 
clear, or pay duties in another. 

7. No money shall be drawn from the treasury but in conse- 
quence of appropriations made by law ; and a regular statement 
and account of the receipts and expenditures of all public money 
shall be published from time to time. 

8. No title of nobility shall be granted by the United States : 
and no person holding any office of profit or trust under them, 
shall, without the consent of the Congress, accept of any pres- 
ent, emolument, office, or title of any kind whatever, from any 
king, prince, or foreign state. 

section x. 

1. No state shall enter into any treaty, alliance, or confedera- 
tion ; grant letters of marque and reprisal ; coin money ; emit 
bills of credit ; make anything but gold and silver coin a tender 
in payment of debts ; pass any bill of attainder, ex post facto 
law, or law impairing the obligation of contracts ; or grant any 
title of nobility. 

2. No state shall, without the consent of the Congress, lay 
any imposts or duties on imports or exports, except what may be 
absolutely necessary for executing its inspection laws ; and the 
net produce of all duties and imposts, laid by any state on im- 
ports or exports, shall be for the use of the treasury of the 
United States ; and all such laws shall be subject to the revision 
and control of the Congress. 

3. No state shall, without the consent of the Congress, lay 
any duty of tonnage, keep troops or ships of war in time of peace, 
enter into any agreement or compact with another state, or with 
a foreign power, or engage in war, unless actually invaded, or in 
such imminent danger as will not admit of delay. 



THE UNITED STATES. 161 



ARTICLE II. 

Of the Executive. 

SECTION I. 

1. The executive power shall be vested in a President of the 
United States of America. - He shall hold his office during the 
term of four years, and, together with the Vice-President, chosen 
for the same term, be elected as follows : 

2. Each state shall appoint, in such manner as the legislature 
thereof may direct, a number of electors, equal to the whole num- 
ber of senators and representatives to which the state may be 
entitled in the Congress : but no senator or representative, or 
person holding an office of trust or profit under the United States, 
shall be appointed an elector. 

[3. The electors shall meet in their respective states, and vote by ballot for two 
persons, of whom one at least shall not be an inhabitant of the same state with 
themselves. And they shall make a list of all the persons voted for, and of the 
number of votes for each ; which list they shall sign and certify, and transmit 
sealed to the seat of the government of the United States, directed to the Presi- 
dent of the Senate. The President of the Senate shall, in the presence of the 
Senate and House of Representatives, open all the certificates, and the votes 
shall then be counted. The person having the greatest number of votes shall 
be the President, if such number be a majority of the whole number of electors 
appointed ; and if there be more than one who have such majority, and have an 
equal number of votes, then the House of Representatives shall immediately 
choose by ballot one of them for President ; and if no person have a majority, 
then from the five highest on the list, the said House shall in like manner 
chooae the President. But in choosing the President, the votes shall be taken 
by states, the representation from each state having one vote : A quorum for 
this purpose shall consist of a member or members from two-thirds of the 
states, and a majority of all the states shall be necessary to a choice. In every 
case, after the choice of the President, the person having the greatest number 
of votes of the electors shall be the Vice-President. But if there should remain 
two or more who have^equal votes, the Senate shall choose from them by bal- 
lot the Vice-President.]* 

3. The Congress may determine the time of choosing the 
electors, and the day on which they shall give their votes ; which 
day shall be the same throughout the United States. 

4. No person, except a natural born citizen, or a citizen of the 
United States at the time of the adoption of this Constitution, 
shall be eligible to the office of President ; neither shall any per- 
son be eligible to that office who shall not have attained to the 
age of thirty-five years, and been fourteen years a resident within 
the United States. 

5. In case of the removal of the President from office, or of 
his death, resignation, or inability to discharge the powers and 
duties of the said office, the same shall devolve on the Vice-Pres- 
ident ; and the Congress may by law provide for the case of re- 
moval, death, resignation, or inability, both of the President and 
Vice-President, declaring what officer shall then act as President, 

* This clauseis annulled. See Amendments, Art. 12. 
02 



162 CONSTITUTION OF 

and such officer shall act accordingly, until the disability be re- 
moved, or a President shall be elected. 

6. The President shall, at stated times, receive for his services 
a compensation, which shall neither be increased nor diminished 
during the period for which he shall have been elected, and he 
shall not receive within that period any other emolument from the 
United States, or any of them. 

7. Before he enter on the execution of his office, he shall take 
the following oath or affirmation : — 

11 1 do solemnly swear (or affirm), that I will faithfully execute 
the office of President of the United States, and will, to the best 
of my ability, preserve, protect, and defend the Constitution of the 
United States." 

section II. 

1. The President shall be commander-in-chief of the army an" 
navy of the United States, and of the militia of the several states 
when called into the actual service of the United States ; he may 
require the opinion, in writing, of the principal officer in each of 
the executive departments, upon any subject relating to the duties 
of their respective offices, and he shall have power to grant re- 
prieves and pardons for offences against the United States, except 
in cases of impeachment. 

2. He shall have power, by and with the advice and consent of 
the Senate, to make treaties, provided two-thirds of the senators 
present concur ; and he shall nominate, and by and with the ad- 
vice and consent of the Senate, shall appoint ambassadors, other 
public ministers and consuls, judges of the supreme court, and 
all other officers of the United States whose appointments are 
not herein otherwise provided for, and which shall be established 
by law : but the Congress may by law vest the appointment of 
such inferior officers as they think proper in the President alone, 
in the courts of law, or in the heads of departments. 

3. The President shall have power to fill up all vacancies that 
may happen during the recess of the Senate, by granting com- 
missions which shall expire at the end of their next session. 

SECTION III. 

1. He shall, from time to time, give to the Congress informa- 
tion of the state of the Union, and recommend to their considera- 
tion such measures as he shall judge necessary and expedient; 
he may, on extraordinary occasions, convene both Houses, or 
either of them, and in case of disagreement between them, with 
respect to the time of adjournment, he may adjourn them to such 
time as he shall think proper ; he shall receive ambassadors and 
other public ministers ; he shall take care that the laws be faith- 
fully executed, and shall commission all the officers of the United 
States. 



THE UNITED STATES. 163 



SECTION IV. 

1. The President, Vice-President, and all civil officers of the 
United States, shall be removed from office on impeachment for, 
and conviction of, treason, bribery, or other high crimes and mis- 
demeanors. 

ARTICLE III. 

Of the Judiciary. 

SECTION I. 

1. The judicial power of the United States shall be vested in 
one supreme court, and in such inferior courts as the Congress 
may, from time to time, ordain and establish. The judges, both 
of the supreme and inferior courts, shall hold their offices during 
good behaviour, and shall, at stated times, receive for their ser- 
vices a compensation, which shall not be diminished during their 
continuance in office. 

SECTION II. 

1. The judicial power shall extend to all cases, in law and 
equity, arising under this Constitution, the laws of the United 
States, and treaties made, or which shall be made, under their 
authority ; — to all cases affecting ambassadors, other public min- 
isters, and consuls ; — to all cases of admiralty and maritime juris- 
diction ; — to controversies to which the United States shall be a 
party ; — to controversies between two or more states ; — between 
a state and citizens of another state ; — between citizens of differ- 
ent states ; — between citizens of the same state claiming lands 
under grants of different states, and between a state or the citi- 
zens thereof, and foreign states, citizens, or subjects. 
) 2. In all cases affecting ambassadors, other public ministers, 
and consuls, and those in which a state shall be party, the su- 
preme court shall have original jurisdiction. In all the other 
cases before mentioned, the supreme court shall have appellate 
jurisdiction, both as to law and fact, with such exceptions, and 
under such regulations as the Congress shall make. 

3. The trial of all crimes, except in cases of impeachment, 
shall be by jury ; and such trial shall be held in the state where 
the said crimes shall have been committed ; but when not com- 
mitted within any state, the trial shall be at such place or places 
as the Congress may by law have directed. 

SECTION III. 

1. Treason against the United States shall consist only in levy 
ing war against them,~or in adhering to their enemies, giving 
them aid and comfort. 

2. No person shall be convicted of treason unless on the tes- 



164 CONSTITUTION OF 

timony of two witnesses to the same overt act, or on confession in 
open court. 

3. The Congress shall have power to declare the punishment 
of treason, but no attainder of treason shall work corruption of 
blood, or forfeiture, except during the life of the person attainted. 

ARTICLE IV. 

Miscellaneous. 

SECTION I. 

1. Full faith and credit shall be given in each state to the pub- 
lic acts, records, and judicial proceedings of every other state. 
And the Congress may, by general laws, prescribe the manner in 
which such acts, records, and proceedings shall be proved, and the 
effect thereof. 

SECTION II. 

1. The citizens of each state shall be entitled to all privileges 
and immunities of citizens in the several states. 

2. A person charged in any state with treason, felony, or other 
crime, who shall flee from justice, and be found in another state, 
shall, on demand of the executive authority of the state from 
which he fled, be delivered up, to be removed to the state having 
jurisdiction of the crime. 

3. No person held to service or labour in one state, under the 
laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or la- 
bour, but shall be delivered up on claim of the party to whom such 
service or labour may be due. 

SECTION III. 

1. New states may be admitted by the Congress into this 
union : but no new state shall be formed or erected within the 
jurisdiction of any other state ; nor any state be formed by the 
junction of two or more states, or parts of states, without the 
consent of the legislatures of the states concerned, as well as of 
the Congress. 

2. The Congress shall have power to dispose of and make 
needful rules and regulations respecting the territory or other 
property belonging to the United States; and nothing in this 
Constitution shall be so construed as to prejudice any claims of 
the United States, or of any particular state. 

SECTION IV. 

1. The United States shall guaranty to every state in this 
Union a republican form of government, and shall protect each 
f them against invasion ; and on application of the legislature, 
r of the executive (when the legislature cannot be convened), 
against domestic violence. 



THE UNITED STATES. 165 



ARTICLE V. 

1 Of Amendments. 

1. The Congress, whenever two-thirds of both Houses shall 
deem it necessary, shall propose amendments to this Constitution, 
or, on the application of the legislatures of two-thirds of the sev- 
eral states, shall call a convention for proposing amendments, 
which, in either case, shall be valid to all intents and purposes as 
part of this Constitution, when ratified by the legislatures of 
three-fourths of the several states, or by conventions in three- 
fourths thereof, as the one or the other mode of ratification may 
be proposed by the Congress ; provided that no amendment, 
which may be made prior to the year one thousand eight hundred 
and eight, shall in any manner aifect the first and fourth clauses 
in the ninth section of the first article ; and that no state, without 
its consent, shall be deprived of its equal suffrage in the Senate. 

ARTICLE VI. 

Miscellaneous. 

1. All debts contracted, and engagements entered into, before 
the adoption of this Constitution, shall be as valid against the 
United States under this Constitution [as under the Confedera- 
tion. 

2. This Constitution, and the laws of the United States, which 
shall be made in pursuance thereof; and all treaties made, or 
which shall be made, under the authority of the United States, 
shall be the supreme law of the land ; and the judges in every 
state shall be bound thereby, any thing in the Constitution or 
laws of any state to the contrary notwithstanding. 

3. The senators and representatives before mentioned, and the 
members of the several state legislatures, and all executive and 
judicial officers, both of the United States and of the several 
states, shall be bound by oath or affirmation, to support this Con- 
stitution ; but no religious test shall ever be required as a qualifi- 
cation to any office or public trust under the United States. 

ARTICLE VII. 

Of the Ratification. 
1. The ratification of the conventions of nine states, shall be 
sufficient for the establishment of this Constitution between the 
states so ratifying the same. 

h Done in convention, by the unanimous consent of the States present, the 
seventeenth day of September, in the year of our Lord one thousand 
seven hundred and eighty-seven, and of the Independence of the United 
States of America the twelfth. In witness whereof we have hereunto 
subscribed our names. 

GEO. WASHINGTON, President, 

and Deputy from Virginia. 



166 CONSTITUTION OF 

New-Hampshire — John Langdon, Nicholas Gilman. Massa- 
chusetts — Nathaniel Gorham, Rufus King. Connecticut — Wil- 
liam S. Johnson, Roger Sherman. New- York — Alexander Ham- 
ilton. New-Jersey — William Livingston, David Brearley, Wil- 
liam Paterson, Jonathan Dayton. Pennsylvania — Benjamin 
Franklin, Thomas Mifflin, Robert Morris, George Clymer, 
Thomas Fitzsimmons, Jared Ingersol, James Wilson, Gouver- 
neur Morris. Delaware — George Read, Gunning Bedford, jun., 
John Dickinson, Richard Bassett, Jacob Broom. Maryland — 
James M'Henry, Daniel of St. Thomas Jenifer, Daniel Carroll. 
Virginia — John Blair, James Madison, jun. North Carolina — 
William Blount, Richard Dobbs Spaight, Hugh Williamson. 
South Carolina — John Rutledge, Charles Cotesworth Pinckney, 
Charles Pinckney, Pierce Butler. Georgia — William Few, 
Abraham Baldwin. 



Attest : > 



William Jackson, Secretary. 



[ Congress at their first session under the Constitution, held in the 
city of New- York, in 1789, proposed to the legislatures of the 
several Stales twelve amendments, ten of which only were 
adopted. They are the first ten of the following amendments ; 
and they were ratified by three- fourths, the constitutional num~ 
her, of the States, on the 1 5th of December, 1791. The 11th 
amendment was proposed at the first session of the third Con- 
gress, and was declared in a message from the President of the 
United States to both Houses of Congress, dated the 8th of Janu- 
ary, 1798, to have been adopted by the constitutional number of 
States. The 12th amendment, which was proposed at the first 
session of the eighth Congress, was adopted by the constitutional 
number of States in the year 1804, according to a public notice 
by the Secretary of State, dated the 25th of September, 1804.] 

AMENDMENTS 

To the Constitution of the United States, ratified according to the Provisions of 
the Fifth Article of the foregoing Constitution. 

Article I. Congress shall make no law respecting an estab- 
lishment of religion, or prohibiting the free exercise thereof; or 
abridging the freedom of speech, or of the press ; or the right of 
the people peaceably to assemble, and to petition the government 
for a redress of grievances. 

Art. II. A well regulated militia being necessary to the se- 
curity of a free state, the right of the people to keep and bear 
arms shall not be infringed. 

Art. III. No soldier shall, in time of peace, be quartered in 



THE UNITED STATES. 167 

any house without the consent of the owner, nor in time of war 
but in a manner to be prescribed by law. 

Art. IV. The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and 
seizures, shall not be violated, and no warrants shall issue but 
upon probable cause, supported by oath or affirmation, and par- 
ticularly describing the place to be searched, and the persons or 
things to be seized. 

I* Art. V. No person shall be held to answer for a capital, or 
otherwise infamous crime, unless on a presentment or indictment 
of a grand jury, except in cases arising in the land or naval forces, 
or in the militia, when in actual service in time of war or public 
danger ; nor shall any person be subject, for the same offence, to 
be twice put in jeopardy of life or limb; nor shall be compelled, 
in any criminal case, to be a witness against himself, nor be de- 
prived of life, liberty, or property, without due process of law ; 
nor shall private property be taken for public use without just 
compensation. 

Art. VI. In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial, by an impartial jury of the 
state and district wherein the crime shall have been committed, 
which district shall have been previously ascertained by law, and 
to be informed of the nature and cause of the accusation ; to be 
confronted with the witnesses against him ; to have compulsory 
process for obtaining witnesses in his favour, and to have the as- 
sistance of counsel for his defence. 

Art. VII. In suits at common law, where the value in contro- 
versy shall exceed twenty dollars, the right of trial by jury shall be 
preserved, and no fact tried by a jury shall be otherwise re-ex- 
amined in any court of the United States, than according to the 
rules of the common law. 

Art. VIII. Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishments inflicted. 

Art. IX. The enumeration, in the Constitution, of certain 
rights, shall not be construed to deny or disparage others retained 
by the people. 

Art. X. The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved to 
the States respectively, or to the people. 

Art. XI. The judicial power of the United States shall not be 
construed to extend to any suit, in law or equity, commenced or 
prosecuted against one of the United States by citizens of an- 
other state, or by citizens or subjects of any foreign state. 

Art. XII. The electors shall meet in their respective States, 
and vote by ballot for President and Vice-President, one of whom, 
at least, shall not be an inhabitant of the same state with them- 
selves ; they shall name in their ballots the person voted for as 
President, and in distinct ballots the person voted for as Vice- 



168 CONSTITUTION OF 

President, and they shall make distinct lists of all persons voted 
for as President, and of all persons voted for as Vice-President, 
and of the number of votes for each, which lists they shall sign 
and certify, and transmit- sealed to the seat of the government of 
the United States, directed to the President of the Senate. The 
President of the Senate shall, in the presence of the Senate and 
House of Representatives, open all the certificates, and the votes 
shall then be counted ; the person having the greatest number 
of votes for President shall be the President, if such number be 
a majority of the whole number of electors appointed ; and if no 
person have such majority, then from the persons having the 
highest numbers, not exceeding three, on the list of those voted 
for as President, the House of Representatives shall choose im- 
mediately, by ballot, the President. But in choosing the Presi- 
dent, the votes shall be taken by states, the representation from 
each state having one vote ; a quorum for this purpose shall con- 
sist of a member or members from two-thirds of the states, and 
a majority of all the states shall be necessary to a choice. And 
if the House of Representatives shall not choose a President, 
whenever the right of choice shall devolve upon them, before the 
fourth day of March next following, then the Vice-President shall 
act as President, as in the case of the death or other constitu- 
tional disability of the President. The person having the great- 
est number of votes as Vice-President shall be the Vice-Presi- 
dent, if such number be a majority of the whole number of elect- 
ors appointed, and" if no person have a majority, then from the 
two highest numbers on the list the Senate shall choose the Vice- 
President ; a quorum for the purpose shall consist of two-thirds 
of the whole number of senators, and a majority of the whole 
number shall be necessary to a choice. But no person constitu- 
tionally ineligible to the office of President shall be eligible to 
that of Vice-President of the United States. 

[Note 1. Another amendment was proposed as article XIII. at the second 
session of the eleventh Congress, but not having been ratified by a sufficient 
number of the states, has not become valid, as a part of the Constitution of 
the United States. It is erroneously given as a part of the Constitution, in 
page 74, vol. I. Laws of the United States, published by Bioren & Duane, 
in 1815.] 

[Note 2. The Constitution, as above printed, has been carefully compared 
with the copy in the Laws of the United States, published by authority, and 
also with one in the National Calendar for the year 1826, which was copied 
from the roll in the Department of State.] 

[Note 3. The ratification of the Constitution by the state of .New Hamp- 
shire, being the 9th in order, was laid before Congress on the 2d of July, 1788, 
and, with the ratifications of the other states, was referred to a committee, to 
report an act for carrying the new system into operation. An act for this pur- 
pose was reported on the 14th of the same month, and was passed on the 13th 
of the September following.]— American Almanac, 1831. 



THE RATIFICATION OF THE CONSTITUTION. 169 



CHAPTER III. 

THE RATIFICATION OF THE CONSTITUTION. 

§ 435. We have now seen what the Constitution is, 
and in connexion with that, what constructions have 
been put upon its various clauses, and what decisions 
have been had under it by the judicial authority. It is 
important that we should now look at the mode in whicli 
it was ratified, and what opinions were declared by the 
ratifying power, as to what were the rights vested in the 
national government. 

§ 436. When the Convention had formed the Consti- 
tution, they by resolution 1 directed it to be " laid before 
the United States in Congress assembled," and declared 
their opinion that it should afterward "be submitted to 
a convention of delegates, chosen in each state by the 
people thereof, under a recommendation of its legislature, 
for their assent and ratification ;" and that each con- 
vention assenting thereto, and ratifying it, should notify 
Congress thereof. 

§ 437. Accordingly, Congress having received there- 
port of the convention, — Resolved, that the report, 
resolutions, and letter accompanying them be trans- 
mitted to the several legislatures, to be by them sub- 
mitted to a convention of delegates chosen in each state 
by the people thereof in conformity to the resolve of the 
convention, &c. <fec. 

§ 438. Under this resolution of Congress, the states 
called conventions of the people, and the Constitution 

1 4 Elliott's Debates, 248. * Idem. 

P 



170 THE RATIFICATION OF 

being submitted to them, was ratified successively by all 
of them, and the Constitution became the supreme law 
of the land. 

ORDER AND MANNER OF RATIFICATION. 

§439. 1st. ! The first state which ratified the Con- 
stitution was Delaware, which did so on the 7th Decem- 
ber, 1787, — without condition or the recommendation 
of an amendment. 

§ 440. 2d. 2 The second was Pennsylvania, which, 
in like manner, without any declaration or recommenda- 
tion, ratified it on the 12th of December, 1787. 

§ 441. 3d. The next was New-Jersey, which ratified 
on the 18th December, 1787, as is declared in their 
ratification, by the unanimous consent of all the mem- 
bers. 

§ 442. 4th. 3 The fourth was Connecticut, which 
likewise ratified without any declaration, on the 9th 
January, 1788. 

§ 443. 5th. 4 The next was Georgia, which ratified, 
without condition or resolution. 

§ 444. 6th. The sixth was Massachusetts. In the 
convention of this state, there was much opposition 5 to 
the Constitution, and at first a majority against it. In 
consequence of this, it was finally ratified with the 
declaration of the convention, that in their opinion, cer- 
tain amendments and alterations were necessary to 
remove the fears, and quiet the apprehensions of many 
of the good people of that commonwealth. 

The amendments recommended were as follows, 
viz ; 6 

1. That 7 it be declared that all powers not expressly 

1 Elliott's Debates, vol. 4, p. 207. 2 Idem. 202. 3 Idem. 
209. 4 Idem. 212. 6 2 Pitkin's Civ. Hist., 266. 6 4 El- 

liott's Debates, 211. 

7 Note. — Whenever resolutions or other proceedings are given 
in this work, except in the case of the Constitution, they are set 
forth substantially. 



THE CONSTITUTION. 171 

delegated by the Constitution should be reserved to the 
several states, to be by them exercised. 

2. That there should be one representative to each 
thirty thousand persons, until the whole number of 
persons amounted to two hundred. 

3. That Congress should not exercise the power of 
making regulations for electing members of Congress, 
unless the states neglected to make such regulations, or 
made them subversive of a free and equal representation. 

4. That Congress do not lay direct taxes, but when 
the funds arising from impost and excise are insufficient, 
nor then till they have first made a requisition on each 
of the states for their quota, and the states have neglected 
or refused to pay their proportion. 

5. That Congress erect no company of merchants 
with exclusive advantages. 

6. That no person be tried for a crime, or suffer an 
infamous punishment, or loss of life, except in the mili- 
tary or naval service, without indictment by a grand 
jury. 

7. The United States Judiciary shall have no juris- 
diction of causes between citizens of different states, 
unless the matter in dispute extend to $3000, nor the ju- 
dicial power extend to actions between citizens of differ- 
ent states when the matter is not of the value of $1500. 

§ 445. 8. In civil actions between citizens of differ- 
ent states, issues of fact at common law shall be tried 
by jury, if the parties request it. 

9. Congress shall not consent, that any person hold- 
ing an office of profit or trust under the United States 
shall receive any title or office from a king, prince, or 
foreign state. 

§ 446. With the recommendation of these amend- 
ments, Massachusetts, after great opposition, 1 ratified the 
Constitution on the 7th of February, 1788. - 

* 4 Elliott's Debates, 212. 



172 THE RATIFICATION OF 

§ 447. It will be seen in the Constitution, that the 
sixth recommendation in relation to Indictments is im- 
bodied in the fifth amendment to the Constitution, and that 
the eighth recommendation is included in the seventh 
amendment. With the exception of these two, none of 
the recommendations were ever adopted. 

§ 44S. 7th. lr rhe seventh state to ratify the Constitu- 
tion was Maryland. This was done without any col- 
lateral resolutions, on the 28th of April, 1788. 

§ 449. 8th. The next was the state of South Carolina, 
which ratified on the 23d of May, 1788. Accompany- 
ing their recommendation also, were several resolutions, 
the substance of which is as follows ; viz. 

1. The first resolution was the same as the third 
of Massachusetts, in relation to the power of Congress 
to regulate the elections of its members. 

2. The second was the same as the first of Massa- 
chusetts, in relation to the powers not expressly granted. 

3. The third was the same as the fourth of Massa- 
chusetts, in relation to direct taxes. 

4. The fourth was a verbal criticism on the third 
section of the sixth article. 

5. The fifth made it a standing instruction to the 
delegates from that state to endeavour to have these 
alterations made. 

None of these proposed amendments were ever made. 

§ 450. 9th. 2 The ninth state which ratified, and 
which made up the number which was necessary to put 
the Constitution in operation, was New-Hampshire ; 
this took place on the 21st of June, 1788. In the con- 
vention of this state, as in Massachusetts, there was 
great opposition to the Constitution, and their ratification 
was accompanied with the following recommendations. 

1. The first is the same as those of Massachusetts 
and South Carolina, in relation to powers not expressly 
delegated. 

1 Elliott's Debates, 213. 2 4 Idem. 214. 



THE CONSTITUTION. 173 

2. The second is the same as the second of Massa- 
chusetts. 

3. The third, fourth, fifth, sixth, seventh, eighth, and 
ninth alterations proposed are the same with the cor- 
responding ones proposed by Massachusetts. In fact, 
as far as the tenth, the New-Hampshire propositions 
seem to have been a literal copy from those of Massa- 
chusetts. 

10. The tenth was, that no standing army should be 
kept in time of peace, without the consent of three-fourths 
of both branches of Congress, nor shall soldiers in time 
of peace be quartered upon private houses without the 
consent of owners. 

11. Congress shall make no laws touching religion, 
nor infringe the rights of conscience. 

12. Congress shall not disarm citizens unless such 
as have been in rebellion. 

The latter part of the tenth alteration proposed is 
embraced in the third amendment to the Constitution. 
The eleventh is included in the first amendment to the 
Constitution. The twelfth is the second amendment. 

§ 451. 10th. The tenth state in the order 1 of ratifica- 
tion was Virginia, which ratified on the 26th June, ] 788. 
In this state also there was much opposition, and their 
ratification was accompanied by a declaration of rights, 
in substance as follows ; viz. 

That the people may resume the powers of govern- 
ment, when they are perverted and abused to their 
injury and oppression ; that every power not granted 
remains with them and at their will ; that no right can 
be cancelled, abridged, or restrained by Congress, the 
President, or any department or officer of the United 
States, except where the power is given by the Consti- 
tution for these purposes ; and that the rights of con- 
science and of the press cannot be so restrained, modi- 
fied, or cancelled. 

1 4 Elliott's Debates, 215. 
P2 



174 THE RATIFICATION OF 

This declaration contained the substance of many of 
the resolutions offered by other states ; and we shall 
see, in the course of this chapter, the portion of them 
which was adopted. 

§452. 11th. The eleventh state 1 adopting the Consti- 
tution was New- York. Their ratification was made on 
the 26th July, in the year 1788. It was accompanied 
by a long declaration of rights, and a series of proposed 
amendments. 

In addition to the amendments already proposed by 
other states, there were the following : — 

That Congress should not impose an excise on any 
article of the growth, production, or manufacture of the 
United States. 

That no person should be eligible as President, Vice- 
President, or member of Congress, who was not a nat- 
ural born citizen, or a citizen on the 4th of July, 1776, 
or held a commission under the United States during 
the war, and became citizens subsequently, and who 
shall be freeholders. 

That to borrow money, or declare war, two-thirds of 
the senators and representatives present must concur. 

That the privilege of Habeas Corpus shall not be 
suspended for a longer time than six months, or until 
twenty days after the meeting of the next Congress. 

That the right of exclusive jurisdiction over ten miles 
square shall not exempt its citizens from paying the 
same taxes that other citizens do, nor privilege them 
from arrest for crimes committed, or debts contracted 
without the district. 

That the right of exclusive jurisdiction over certain 
public places shall not authorize Congress to prevent 
the operation of the state laws in civil and criminal 
matters, except as to persons in the employ of the 
United Stales, nor as to them, in respect to crimes. 

1 4 Elliott's Debates, 216. 



THE CONSTITUTION. 175 

That the compensation of members of Congress be 
fixed by standing laws, and no alteration operate for 
the benefit of members making it. 

That the Journals of Congress shall be published at 
least once a year, except such parts as may require 
secrecy ; that they shall keep their doors open ; and 
that two members may require the yeas and nays. 

That no capitation tax shall be laid. 

That no person shall be senator more than six years 
out of twelve ; that the legislatures may recall their 
senators and elect others. 

That no member of Congress shall, during the time 
for which he was elected, be appointed to any office 
under the United States. 

That the power of Congress to pass bankrupt laws 
should only extend to merchants and traders, and that 
the states have power to pass other insolvent laws. 

That no person be eligible as President a third time. 

That the executive shall not grant pardons for trea- 
son without the consent of Congress, but may reprieve 
them till heard by Congress. 

That the President, or person acting as such, shall 
not command the army in the field unless by desire of 
Congress. 

That all letters patent, commissions, writs, &c, 
should run in the name of " the People of the United 
States," and be tested in the name of the President of 
the United States, or the first judge of the court out of 
which process shall issue. 

That Congress should constitute no inferior tribunals 
with appellate power, except such as are necessary for 
admiralty and maritime jurisdiction, and in other cases 
where the jurisdiction is not original, causes shall be 
tried by the state courts, with a right of appeal to the 
Supreme Court. 

That the court for the trial of impeachments shall 



176 THE RATIFICATION OF 

consist of the Senate, the Judges of the Supreme 
Court, and the chief judge of the highest court in each 
state. 

That no judge of the Supreme Court shall hold any 
other office under the government of the United States, 
or any of them. 

That the militia shall not be compelled to serve out 
of the state for more than six weeks, without the con- 
sent of the legislature. 

None of these propositions were adopted, but taken 
in connexion with the amendments proposed by other 
states, they show what construction was, at the time, 
placed upon some of the most important clauses of the 
Constitution. 

§ 453. 12th. J The twelfth state which ratified the Con- 
stitution was North Carolina, on the 2 1st of November, 
1789. In this state, also, there was great opposition, 
and a resolution was passed, declaring that a bill of 
rights should be annexed to the Constitution, and sev- 
eral amendments adopted. 

§ 454. The ratification of New-Hampshire, the ninth 
in order was received by Congress on the 2d of July, 
1788. They then appointed a committee to report an 
act to put the Constitution into operation. Under that 
act the Constitution went into operation on the 4th of 
March, 1789. It has been seen that North Carolina 
did not ratify till November, so that the first election of 
President was made by eleven states. 

§ 455. Rhode Island was not represented in the Con- 
vention, and did not ratify the Constitution till the 29th 
of May, 1790, 2 more than a year after it had gone into 
practical operation. The ratification was accompanied 
by a Declaration of Rights, and the recommendation of 
many amendments. They recommended nearly all the 

1 4 Elliott's Debates, 221. b 2 Idem. 225. 



THE CONSTITUTION. 177 

alterations proposed by other states, and the following 
additional ones ; — 

That the judicial power of the United States, in which 
a state is a party, shall not extend to criminal prosecu- 
tions, nor to authorize any suit, by any person, against a 
state. 

That no amendment shall take effect without the con- 
sent of eleven states. 

That no person shall be compelled to do military duty 
without voluntary enlistment. 

That no standing army be kept in time of peace. 

These alterations were not adopted, except the one 
in relation to suits by individuals against a state, which 
is imbodied in the eleventh amendment to the Consti- 
tution. 

§ 456. The Constitution, after its formation, was 
addressed to the President of Congress, and accompa- 
nied by a letter from General Washington, President of 
the Convention, — from which the following extracts are 
taken. 

The letter shows, in a remarkable manner, in what 
light the Constitution was then viewed, and what were 
the objects of its formation. They were very different 
from the fanciful constructions which metaphysical poli- 
ticians have since been disposed to put upon it. 

§ 457. x It is obviously impracticable in the federal 
government of these states, to secure all rights of inde- 
pendent sovereignty to each, and yet provide for the in- 
terests and safety of all. Individuals entering into 
society must give up a share of liberty to preserve the 
rest. The magnitude of the sacrifice must depend, as 
well on situation and circumstance as on the object 
to be obtained. It is at all times difficult to draw with 
precision the line between those rights which must be 
surrendered and those which may be reserved ; and, on 
the present occasion, this difficulty was increased by a 

1 4 Elliott's Debates, 249, 



178 THE RATIFICATION OF 

difference among the several states as to their situation, 
extent, habits, and particular interests. 

In all our deliberations on this subject, we Jcept 
steadily in our view that which appears to us the great- 
est interest of every true American, the consolidation of 
the Union, in which is involved our prosperity, felicity, 
safety, — perhaps our national existence. This import- 
ant consideration, seriously and deeply impressed upon 
our minds, led each State in the Convention to be less 
rigid on points of inferior magnitude than might have 
been otherwise expected ; a spirit of amity, and of that 
mutual deference and concession, which the peculiarity 
of our political situation rendered indispensable. 

§ 458. The spirit in which our Constitution was 
formed, and the great object to be obtained by it, were 
very different from the spirit and objects entertained by 
some modern politicians. Then the consolidation of our 
union was the great end, to which all other objects were 
pronounced, by Washington and his fellow-statesmen, 
of inferior magnitude. Now, consolidation, whether of 
the union, of law, or of government, is the great object 
of fear and danger to a class of men who either think 
or assert themselves to be the purest of patriots ! 

§ 459. At the first session of the first Congress, the 
Senate and House of Representatives, two-thirds con- 
curring, recommended to the states the adoption of 
twelve amendments to the Constitution, comprising 
chiefly those parts of the recommendations of the states 
which we have already noticed as having been adopted. 
Ten of these amendments were adopted 1 by three- 
fourths of the legislatures of the states, and became a 
part of the Constitution. Subsequently, three other 
amendments were added. 

§ 460. On the 10th of January, 1791, Vermont, the 
first of the new states, joined the union, and gave its 

1 4 Elliott's Debates, 227, 



THE CONSTITUTION. 179 

assent to the Constitution. Since then the Constitution 
has been adopted, assented to, and ratified by ten new 
states, who have become integral parts of the great 
whole, and, as we shall hereafter see, indissolubly con- 
nected by the union. In this manner the Constitution 
was ratified, and received its binding force from the 
people in the several states, not from the state govern- 
ments. 

§ 461. The language of the ratifications is remarka- 
bly uniform, and remarkably explicit, as to the source 
whence the Constitution receives its authority and 
force. 

All the ratifications commence with, We, the delegates 
of the people thereof; and all terminate by making the 
ratifications in the name of their constituents, the people. 

It is plain throughout, that some other binding force 
was thought necessary than mere state authorities. 
The people, — common constituents, it is true, of both 
state and national governments, — were everywhere sum- 
moned, in their original and sovereign capacity, to give 
authority to that union and constitution, which was not 
a compact among state governments but among the peo- 
ple, who are equally sovereign over both national and 
state governments, and upon whom the Constitution acts 
directly and personally. 

§ 462. Among the constructions given to the Consti- 
tution at the time, in the declarations of the states rati- 
fying it, may be remarked the following fact, — that Mas- 
sachusetts explicitly declared, that the rights not ex- 
pressly granted were reserved to the states, — and Vir- 
ginia, on the other hand, as explicitly held, that all 
powers of the Constitution were derived from the people 
of the United States, and those not granted were re- 
served to them. These states have now exactly re- 
versed their positions, and exhibit a new evidence of 
the instability of human opinion. Indeed, to those who 
love truth more than argument, all the metaphysical 



180 THE RATIFICATION OF THE CONSTITUTION. 

subtilties of the profoundest philosopher would weigh 
little, in construing the constitution, against such facts 
as the Letter of Washington, the ratifications of the 
states, the debates of the Convention, and the de- 
clared object of all the statesmen who participated in 
the acts and doings of that day. 






STATE GOVERNMENTS. 181 



CHAPTER IV. 

THEORY OF THE STATE GOVERNMENTS. 

§ 463. By article 4th, Section 4th, of the United States 
Constitution, the United States guarantees to every state 
in the Union a republican form of government. Most of 
the colonies had charters previous to the Revolution, 
especially the New-England States, which conceded to 
them all the rights of self-government ; but after the 
Declaration of Independence, and at the close of the 
war, nearly all of them formed Constitutions for them- 
selves. Rhode Island alone still continues under her 
ancient charter. The new states formed their Consti- 
tutions as they were admitted into the Union. 

§ 464. These constitutions are all formed upon the 
same principles with each other, and with the Constitu- 
tion of the United States. They all observe the same 
division of the government into the three parts of Execu- 
tive, Legislative, and Judicial. They all adopt the 
representative principle, and are all republican. One- 
half of them are accompanied with declarations of right, 
— a measure of superabundant caution ; for, the evils 
which they are generally intended to operate against 
could not take place if the State Constitutions had no 
existence ; as the Constitution of the United States 
effectually prohibits them. 

§ 465. The order of time in which the state Constitu- 
tions were formed, is as follows, viz : 

1. J Rhode Island has no Constitution, but is governed 
by a charter from Charles II., which - concedes to the 

\merican Constitutions. 

Q 



182 STATE GOVERNMENTS. 

governor and company all the powers executive, legis- 
lative, and judicial. The governor and legislature are 
chosen by the people, and they appoint the officers. 

2. The first Constitution formed among the states was 
that of New-Jersey, which was ratified by the Provincial 
Congress, July 2d, 1776. As this was before the 
Declaration of Independence, it was provided that if a 
reconciliation took place with Great Britain, then that 
instrument was to be null and void. 

3. The next Constitution was that of Maryland, 
which was formed on the 14th of August, 1776. . 

4. The Constitution of North Carolina was formed 
December 18th, 1776. 

5. Massachusetts assumed her form of government 
March 2d, 1780. 

6. The next was South Carolina, which adopted her 
Constitution on the 3d of June, 1790. 

7. The next Pennsylvania, on the 2d of Sept., 1790. 

8. The next New-Hampshire, in February, 1792. 
9 Vermont, July 9th, 1793. 

10. Tennessee, February 6th, 1796. 

11. Georgia, May 30th, 1798. 

12. Kentucky, 17th of August, 1799. 

13. Ohio, November 1st, 1802. 

14. Louisiana, January 28th, 1812. 

15. Indiana, June 29th, 1816. 

16. Mississippi, 15th of August, 1817. 

17. Illinois, on the 26th of August, 1818. 

18. Connecticut, on the 15th September, 1818. Con- 
necticut had until this time lived, like Rhode Island, 
under the charter of Charles II. 

19. Alabama, on the 2d of August, 1819. 

20. Maine, which had previously constituted a part of 
Massachusetts, adopted her Constitution on October 
29th, 1819. 

21. Missouri, on the 19th of July, 1820. 

22. New- York had a Constitution previously, but her 



STATE GOVERNMENTS. 183 

present one was formed and adopted 10th of Novem- 
ber, 1821. 

23. Virginia also had a Constitution ever since the 
Revolution ; but she formed a new one, 14th January, 
1830. 

24. Delaware adopted her present Constitution 2d 
December, 1831. 

§ 466. As all these are similar to each other, and nearly 
in form the same with the Constitution of the United 
States, it will be unnecessary for the purpose of instruc- 
tion, to consider more than one of them, and then point 
out the differences between that and the others. For 
this purpose we shall select the Constitution of New- 
York, which will be found interesting, on account of its 
being formed at so late a period, the peculiar talent dis- 
played in the convention which formed it, and the 
elaborate structure of its judiciary. 

CONSTITUTION OF NEW-YORK. 

§ 467. In considering this instrument, we shall merely 
give an outline of its principles, without entering into 
details. 

$ 468. By the Constitution of New- York, power is 
vested in three branches, — the Legislative, the Execu- 
tive, and the Judicial. 

By the 1st Article of the Constitution, legislative 
power is vested in a Senate and an Assembly. The 
Senate consists of thirty-two members, who me freehold- 
ers, and chosen for four years ; the Assembly, of 128 
members, annually elected. Senators are chosen by 
districts, the state being divided into eight ; Representa- 
tives by counties. A majority of each house constitutes 
a quorum. Each house determines the rules of its pro- 
ceedings, — the qualifications of its members, — chooses 
its own officers, except that the lieutenant-governor, when 
present, is President of the Senate, — each house keeps 
a journal of its proceedings, and publishes the same, 
except when secrecy is required. Bills may originate 



184 STATE GOVERNMENTS. 

in either house. Every bill which passes the two 
houses must be presented to the governor for his signa- 
ture ; if he object, he may return it, with his objections ; 
if two-thirds of both houses re-enact it, it becomes a law 
without the governor's consent ; if a bill is not returned 
within ten days, Sundays excepted, after it shall have 
been presented, it becomes a law. Officers elected 
during good behaviour may be removed by joint reso- 
lution of the two houses, two-thirds of the Assembly 
concurring, and a majority of the Senate. The Legis- 
lature meets every year. 

§ 469. By Article 2d, every male citizen of the age 
of twenty-one years, who was a resident of the state a 
year previous to any election, and for the last six months 
a resident of the town or county where he may offer 
his vote, and shall have within the year next preceding 
the election paid a tax to the state, or county, assessed 
upon real or personal property, or shall by law be 
exempt from taxation, or shall have performed militia 
duty properly equipped, or shall be exempt by being a 
fireman ; also every male citizen, who shall have been 
for three years next preceding such elections an inhabit- 
ant of the state, and the last year a resident of the town 
or county where he offers his vote, and shall for the last 
year have been assessed to work on the public highway, 
and shall have performed the labour or paid an equiva- 
lent therefor, shall be entitled to vote in the town or 
ward where he actually resides, and not elsewhere, for 
all officers that now are, or hereafter may be elective by 
the people; no man of colour can vote unless he has 
been three years a citizen, and for one year shall have 
been seized and possessed of a freehold of the value 
of $250 over all incumbrances, and shall have paid a 
tax on it. And no person of colour is subject to direct 
taxation without he is so possessed. Since the adop- 
tion of the Constitution the right of suffrage has been 
extended by an amendment, and is now nearly univer- 
sal for citizens over twenty-one years of age. 



STATE GOVERNMENTS. 185 

Persons may be excluded who have been convicted 
pf infamous crimes. 

All elections are by ballot. 

§ 470. By Article 3d, the executive power is vested 
in ^governor, elected for two years; a lieutenant-governor 
is also elected for the same time. 

The qualifications for governor are, — to be a, free- 
holder, 30 years of age, and five years a resident of the 
state, unless absent on public business of the United 
States. Governor and lieutenant-governor are elected at 
the same time and place as members of the Legis- 
lature, — are elected by the highest number of votes : — 
if receiving an equal number, by the Legislature. 

The governor is commander in chief of the militia and 
admiral of the navy ; — convenes the Legislature on 
extraordinary occasions ; communicates to the Legis- 
lature the condition of the state, and recommends such 
things as he thinks proper; transacts all necessary 
business with the officers of government, expedites 
measures resolved upon by the Legislature, and sees the 
laws faithfully executed. He has power to grant re- 
prieves and pardons, except for treason and cases of 
impeachment. In case of the death, removal, impeach- 
ment, &c. of the governor, the lieutenant-governor shall 
perform his duties. 

The lieutenant-governor is President of the Senate, and 
has a casting vote therein ; in case of his performing the 
duties of governor, by resignation, death, &c. the President 
of the Senate for the time being is lieutenant-governor ; 
and in case of vacancy of both governor and lieutenant- 
governor, the President of the Senate acts as governor. 

§471. Article 4th contains the appointing power. The 
governor nominates, and with the consent of the Senate, 
appoints the following officers, viz. : all major-generals, 
brigade inspectors, and chiefs of the staff, among the 
militia, except the commissary-general and adjutant- 
general, of whom the latter is appointed by the governor 
Q 2 



1S6 STATE GOVERNMENTS, 

alone ; all judicial officers except justices of the peace ; 
masters and examiners in Chancery. 

The Legislature nominates, and on joint ballot elects 
the following officers, viz. : The secretary of state, 
comptroller, treasurer, attorney-general, surveyor-gene- 
ral, and commissary-general. 

Captains and subalterns of militia are chosen by the 
privates and non-commissioned officers. Field officers of 
- regiments and battalions by the respective officers of their 
regiments. Brigadiers by the officers of their brigade. 

Clerks of courts, except county clerks, are chosen by 
their respective courts. 

Mayors of cities are chosen annually by the common 
councils, except in the city of New- York, where, by 
an amendment of the Constitution, the mayor is chosen 
by the people. 

Registers and assistant-registers are appointed by the 
chancellor. 

Clerk and other officers for the Court of Oyer and 
Terminer in New-York, are appointed by the Court of 
General Sessions. 

Justices and assistant-justices hi New-York are ap- 
pointed by the Common Council. 

All other officers are elected by the people. 

§ 472. Article 5th concerns the judiciary. There is 
a court of Chancery, over which presides the chancellor : 
a Supreme Court, consisting of a chief justice and two 
justices, any two of whom may hold a court : a Circuit 
Court, consisting of a single judge for each circuit, with 
the powers of a supreme judge at chambers, and with 
criminal jurisdiction, and such equity jurisdiction as the 
Legislature may confer, subject to the appellate juris- 
diction of the chancellor : a County Court, consisting of 
a chief judge and assistants; recorders in cities having 
judicial functions. 

The chancellor and justices of the Supreme Court 
can only hold their offices till they are sixty years of age. 



STATE GOVERNMENTS. 187 

The court for the final correction of errors, and the 
trial of impeachments, consists of the President of the 
Senate, the senators, the chancellor, and the justices of 
the Supreme Court, or a majority of them. The chan- 
cellor and the justices, when a writ of error is brought 
for decisions by them, inform the court of the reasons 
thereof. 

§ 473. By Article 6th, members of the Legislature, 
and all officers except such inferior officers as may be 
exempted by law, are required to take an oath to sup- 
port the Constitution of the United States, and of the 
State of New- York: — and no other oath or test is 
required as a qualification for any office, 

§ 474. Article 7th contains many miscellaneous pro- 
visions, most of them confirmatory of rights already 
established by the Constitution of the United States ; 
such as the trial by jury, the free enjoyment of religious 
worship, the privilege of the writ of Habeas Corpus ; 
presentment and indictment in criminal cases by a grand 
jury ; and the liberty of the press ; it is also provided 
that no minister of the Gospel shall be eligible to any 
civil or military office ; also, that the concurrence of 
two-thirds of each branch of the Legislature is necessary 
to the appropriation of money to local or private pur- 
poses, and to create corporate bodies. 

The Common Law in existence in 1775 is adopted 
and continued in force. 

§ 475. Article 8th provides for the amendments. 
Article 9th appoints the time of its going into operation, 
and the mode by which the new constitution shall be 
carried into effect. 1 

§ 476. These are, in substance, the leading provisions 
of the Constitution of New- York, and are, as will readily 
be perceived, very analogous to those of the Constitution 

1 American Constitutions. 



188 STATE GOVERNMENTS. 

of the United States. Indeed the latter has in a great 
measure been the model for all the state constitutions 
formed since its own adoption ; and that again was 
formed on the best parts of the English constitution, 
modified and amended by the circumstance of many 
states united into one, the more liberal ideas of religious 
freedom, and personal rights, which had grown up and 
for many generations existed among the Colonial Insti- 
tutions. 

§ 477. By a comparison of this constitution with that 
of the United States it will be seen ; 
^lst. That like that of the United States, power is 
divided into the three departments of legislative, execu- 
tive, and judicial. 

§ 478. 2d, That the legislative department is like- 
wise divided into two branches, — the Senate and the 
House of Assembly ; — the former elected by larger 
bodies, and for a longer time ; the latter more popular 
in its character. 

§ 479. 3d, That like the Congress, they decide on 
the qualifications of their own members, and determine 
the rules of their own proceeding. 

§ 480. 4th, Every bill, like the laws of Congress, 
requires the signature of the executive chief to become 
a law, and he may put his negative upon it, and unless 
subsequently passed by two-thirds may reject it. 

§ 481. 5th, The executive, like the President, is chief 
of such military and naval force as the state may em- 
ploy. He also has the nomination, and in conjunction 
with the Senate, the appointment of many important 
officers. Like the President, he makes recommenda- 
tions to the legislative body, and takes care that the 
laws be executed. Like him, he may be impeached, 
and removed. 

§ 482. 6th, The judiciary, in respect to the Supreme 
Court and Circuit Courts, are alike, and so also are 
many other miscellaneous provisions. 



STATE GOVERNMENTS. 189 

§ 483. But, while there is this similitude in the forms 
of the constitutions, there is a wide difference in their 
powers and objects. The Constitution of the United 
States being national, regards national objects, and is 
vested with powers chiefly external, — while the state 
constitutions being subordinate and local, act almost 
wholly upon municipal and internal affairs. 

§ 484. What then is the object and extent of State 
Legislation? The Constitution of the United States 
defines the powers and action of the state governments, 
by the joint action of two principles contained within 
itself. 1st, By the delegation of certain rights and 
powers to the United States government, upon which 
the states cannot trench ; and 2dly, By the express pro- 
hibition of certain other powers to the states. This is 
the limit imposed by the government of the whole upon 
the government of the parts. The residuary power, 
whatever it may be, is expressly Reserved to the states, 
or to the people. The powers retained by the people are 
those great natural rights which they have granted to 
neither state nor national governments ; among these 
are the rights of personal liberty and private worship, 
and the great right of reforming and amending the 
government, or abrogating it entirely when they find it 
oppressive. This is the fundamental right of revolution, 
and should never be confounded with rights arising 
under the government. The former is the original right 
of the people to constitute their own government, and of 
course to overturn it : the latter is subordinate to that 
government, and cannot be exercised in opposition to it. 

§ 485. The powers of the state governments, then, 
are all that great body of authority which the Constitu- 
tion of the United States does not directly or indirectly 
prohibit to the states, and the people have not themselves 
retained. 

§ 486. Without entering into details, we may briefly 

1 10th Amendment to the Constitution of the United States. 



190 STATE GOVERNMENTS. 

notice some of the most important powers possessed by 
the states. 

1st. The Constitution of the United States, while 
directing that a representative body should be chosen, 
left the regulation of the elective franchise to the states ; 
for it directs that the " electors" shall have the same 
qualifications as electors for the most numerous branch 
of the Legislatures. Each state then, in regulating the 
elective franchise for itself, also regulates that of the 
government of the Union, and may make it as enlarged 
or as restricted as it pleases. . 

§ 487. 2d. Another power possessed by the states, 2 is 
that of partaking in the formation of the national senate. 
Though this would seem to place the existence of the 
Senate in the power of the states, yet such is not the fact ; 
for the 3 Constitution in another provision gives Congress 
the power to make and alter regulations as to times and 
manner of choosing senators ; if, then, Congress make 
such regulations, and the states do not choose their 
senators at that time and in that mode, they will act 
unconstitutionally, and place themselves in the wrong. 

§488. 3d. Another power possessed by the states,* is 
contained in the mode of choosing the President. The 
states appoint in such manner as the legislatures direct 
the electors ; but in this case, as in that of senators, 
the power to act or not act is not left with the states. 
By another clause, 5 Congress appoints the time of 
choosing electors, and the day of giving their votes. 

§ 489. 4th. The next and greatest authority vested 
in the states is the enactment of the whole body of local 
and municipal laws, and the enforcement of them by 
a proper organization of judicial courts. The Consti- 
tution of the United States has vested in the national 
government all the powers which are supreme and 

1 Art. J, Sect. 2, United States Constitution. 2 Idem. Sect. 3. 
3 Idem. Sect. 4. 4 Art. 2, Sect. 2, Constitution United States. 
6 Idem. Sect. 4, 



STATE GOVERNMENTS. 191 

national) — and all the powers necessary and proper to 
carry these into effect ; but among these enumerated 
powers, and among those necessary to carry them into 
effect, are not found any of the municipal and local 
laws, which concern the rights of person and property ; 
hence these are among the powers of the states, and 
they constitute the large mass of objects upon which 
the local legislatures occupy themselves. 

This class of laws are those which most intimately 
concern the happiness and prosperity of the people. 
The citizen can well understand this when he reflects 
that an act of incorporation by the Legislature, or the 
location of a canal near his farm, may double his 
property, or a series of unwise enactments destroy the 
peace of society, or paralyze its industry, when the dis- 
tant war, upon which the nation is engaged, is unfelt 
and scarcely known. 

§ 490. The laws which result from the authority of 
state legislatures may be divided into four classes, 
1st, Those which concern private property and rights: 
This is composed of the body of the Common Law, and 
such acts of the Legislature as either confirm, alter, or 
abrogate it, with such other enactments as add or sub- 
stitute new provisions. Thus the Common Law directs 
that the lands of the ancestor shall descend to the heirs, 
in a certain order. The statute of the Legislature, that 
certain alterations shall take place in this mode of 
descent. The Common Law and the statuary alteration 
then constitute the law of descent, and to regulate and 
alter it is one of the powers of the states. 

§ 491. 2d. Another class of laws, upon which the 
state legislatures act, and which occupies much of their 
time, are those relating to corporate and public bodies; 
for example, laws incorporating turnpike, bridge, and 
stock companies, — chartering cities, farms, banks, and 
charitable and literary institutions. 

§ 492. 3d. A third class of subjects upon which the 
legislatures of the states act, is public property, public 



192 STATE GOVERNMENTS. 

works, and public institutions ; of this sort are public 
buildings, lands &c, state canals, rail-roads and im- 
provements, — the provision for common schools, benevo- 
lent institutions, and whatever else is of a public and 
general nature. 

$ 493. 4th. Another subject of legislative action is 
the punishment of crimes. The mode of conviction, the 
nature of the crime, the mode of punishment, and the 
support of criminals, all come within the jurisdiction of 
the states, except those crimes committed against the 
United States, and those committed on the high seas. 

§ 494. 5th. These several classes constitute the 
mass of the municipal and local legislation, with which 
the states are charged. But there are still other powers 
committed to their care. Of these, one of them is the 
power of officering the militia, and governing them 
when not called into service. Here it must be observed, 
however, that Congress, by the Constitution, have the 
power of organizing, arming, and disciplining the militia; 
and, when called into actual service, the President or the 
United States officers command them ; hence, when 
Congress choose to exercise this power, the whole sys- 
tem of State Militia Laws will be abrogated. 

§ 495. 6th. Another power vested in the states is their 
co-operation in the amendment of the Constitution. 
Three-fourths of the states must assent to every amend- 
ment. 

§ 496. Having considered the constitution of the slate 
of Neio- Yor Jc separately, and the general powers vested 
in all the states, it is only necessary farther to see in 
what respects,^ if any, the constitutions of the other 
states differ from that of New-York. 

§ 497. In all the great divisions of the constitutions, 
the states all agree ; Thus, 

1. The government is in all of them expressly divided 
into the three divisions, Legislative, Executive, and Ju- 
dicial. 

2. The Legislative department is in all of them divided 



STATE GOVERNMENTS. 193 

Into two branches, — the Senate and the Assembly, except 
only Vermont, — in which, however, there is an executive 
council, occupying a middle station between the execu- 
tive and the legislative. 

3. The executive is in every state the same, viz., a 
governor. In some states, as in Vermont, New-Hamp- 
shire, and Maryland, the executive power is divided 
between the governor and a council. In these cases, 
the council share with him chiefly in the appointing 
power ; but in every state the chief magistrate is the 
governor. 

4. The states all agree in the leading feature of the 
judiciary; they all have a Supreme Court, with inferior 
courts of Common Law, from which lies an appeal to 
the Supreme Court. In respect to Chancery, Probate, 
and Criminal Courts, they differ. 

§ 498. In considering the differences between the state 
constitutions, — the first and greatest is in respect to the 
right of suffrage. Here, we have before observed, the 
states have a controlling influence over the national 
representatives ; for, by restricting the qualifications of 
electors, they may make the Congress entirely aris- 
tocratic. Such, however, is not the tendency of our 
institutions ; all the amendments in the state consti- 
tutions, made since the Revolution, have enlarged the 
right of suffrage, so that, in most of the states, it is sub- 
stantially universal. Still there are great differences 
in this respect between some of the old and the new 
constitutions. 

§ 499. 1. In the State of New-Hampshire, the right 
of suffrage is vested in " every male inhabitant of 21 
years of age, except paupers, and persons excused from 
paying taxes by their own request." This is the nearest 
universal suffrage granted by any state in the Union. 
In fact, it is so to all whites of age. 

2. In Maine, the right of suffrage is the same, except 
the addition of three months' residence. 
R 



194 STATE GOVERNMENTS. 

3. In Illinois, the qualification is six months' residence 
in the state. 

In Tennessee, six months' residence in any county. 

4. In the States of Indiana, Vermont, and North 
Carolina, the qualification is a year's residence in the 
state,— except that in Vermont, it is required the voter 
should be of quiet and peaceable behaviour ; and in 
North Carolina, a higher qualification is required for the 
Senate. 

5. Georgia, Alabama, and Missouri require one years' 
residence in the state, and three months within the 
county. 

6. In Rhode Island, the charter gives the right of 
suffrage simply to the freemen. 

7. In Connecticut, the qualification is six months' 
residence, and militia duty or exemption from it j or a 
state tax and moral character. 

8. New-Jersey, — one year's residence and state tax. 

9. Maryland, Massachusetts, New-York, and Missis- 
sippi require one year's residence in the state, and six 
months within the county or town. In Massachusetts, 
it is also required to have paid a tax, or been exempt 
by law. 

10. Ohio and Louisiana require one year's residence 
and a tax ; in Louisiana, the tax must have been paid 
within six months. 

11. Pennsylvania, Delaware, and South Carolina 
require two years' residence and a state tax. 

12. Kentucky requires a residence within the state of 
two years, and within the county of one. 

13. Virginia requires, 1st, & freehold of the value of v 
$25, or an interest in one equivalent to it ; or, 2d, a re- 
versionary interest of $50 in value ; or, 3d, a leasehold 
estate of the annual value of $200, or to have been a 
householder for twelve months, and to have been as- 
sessed, and paid a state tax. 

§ 500. In most of the states, the qualifications are so 



STATE GOVERNMENTS. 195 

low that the right of suffrage, in reality, is universal 
among all whites above twenty-one years of age. In 
some of the states, as New- York, free coloured persons 
vote. 

§ 501. The next point upon which there are differ- 
ences among the states is in relation to the judiciary. 
We have already seen that, in the great feature of a 
Supreme Court and inferior courts, they all agree. In 
respect to other courts, there is a variance. 

§ 502. Thus, the states of New- York, New-Jersey, 
Delaware, Maryland, Virginia, South Carolina, and 
Mississippi have Courts of Chancery : in all the rest, 
Chancery powers are vested in the courts of Common 
Law. 

§ 503. Many of the states, as Massachusetts and 
Connecticut, have Courts of Probate ; in others, as New- 
York, the probate duties are performed by the Surrogate, 
an officer appointed for that purpose ; in others, as 
Ohio, the duties of a Court of Probate are attached to 
the Court of Common Pleas. In Louisiana, the parish 
judge performs these duties. 

§ 504. These are the chief points upon which the 
state governments differ. In all, however, there is the 
same form, and the same principles lie at the founda- 
tions. 

§ 505. In the institutions and codes of law adopted 
and enacted in the different states for the government 
of society, there is some difference. In most of the 
states, especially the old ones, the Common Law, as ex- 
isting prior to the Revolution, has been entirely adopted. 
In those states, the courts have common law jurisdiction, 
as well of crimes and offences as in civil suits. There 
the Common Law, the statutes of the Legislature, such 
particular customs as are acknowledged by the courts, 
and the laws of the United States, make up the body of 
laws in force. In other states, as Ohio and several of 
the new states, the Common Law is adopted only, so 



196 STATE GOVERNMENTS. 

far as is consistent with the usages and condition of the 
people; how far it is so, is adjudged by the courts. 
Here criminal offences at Common Law do not exist. 
There are no crimes or misdemeanours but such as are 
found on the statute book. In Connecticut or New- 
York, a person may be indicted for keeping a nuisance, 
and many similar misdemeanours, while in Ohio he 
cannot be, because the statute has not made such acts 
criminal. 

§ 506. In Louisiana, the Civil Law prevails ; the Com- 
mon Law is not adopted there. 

There are some other minor differences in the 
government and laws of the several states, but these 
are the chief. 



CHAPTER V. 

THE NATURE, PRINCIPLES, AND RELATIONS OF THE 
GENERAL AND STATE GOVERNMENTS. 

fy 507. We have already examined, step by step, the 
provisions of the Constitution, and the constructions 
which have been placed upon doubtful points by the 
tribunals and constituted authorities of the country ; but 
every government is of a certain nature dependent upon 
the forms of its administration ; and every government 
has certain principles inherent in itself, and upon which 
it subsists ; in our government, is superadded to these, 
the peculiar relations of the federative system. To 
understand these properly, we must go over clearly and 
separately the fundamental propositions upon which the 
government depends. In doing this, we shall endeavour 
to establish them both by the constitution itself, and the 
fixed principles of political law^ 



STATE GOVERNMENTS." 197 

§ 508. Proposition 1st. The Government of the 
United States is a Republic. 

By our seventh definition, a republic is that form of 
government in which the whole people, or only apart of 
the people, hold sovereign power, and by the preamble to 
the Constitution, we see that the government of the 
United States was formed by " we the people ;" by 
Art. 1, Sect. 1, of the Constitution, we find that all 
legislative power is vested in a Congress ; and by Sect. 
2d, That Congress is chosen by the people ; hence it 
appears from the Constitution that the people of the 
United States hold sovereign power; the government 
is therefore a republic. 

§ 509. Proposition 2d. The Government of the 
United States is a Federative Republic. For we find in 
every article of the Constitution the recognition of 
states ; by Article 1 st, Sect. 2d, these states are rep- 
resented in Congress in proportion to their respective 
numbers; by Sect. 3d, that these states have an equal 
representation in the Senate ; by Art. 4, Sect. 2d, that 
these states have citizens ; by Sect. 3d, that new states 
may be admitted into the Union ; by Sect. 4, that the 
United States guarantee to these states a republican 
government ; hence the United States is a Federative 
Republic, composed of states. 

§ 510. Proposition 3d. The Government of the 
United States is a Democratic Federative Republic. 

By Definition 8th, a democracy is where the sovereign 
power is in the hands of the whole people. By Art. 1, 
Sect. 1, of the Constitution, the legislative power is 
vested in a Congress, composed of a Senate and House 
of Representatives ; by Sect. 2d, the representatives are 
chosen by the people, and the electors have the same 
qualifications as are necessary for the most numerous 
branch of the state legislatures ; by Sect. 3d, the Senate 
is chosen by the state legislatures ; and by Art. 2d, 
Sect. 1, the executive is chosen by electors appointed 
R2 



19S STATE GOVERNMENTS. 

in such manner as the slate legislatures may direct? 
hence, both legislative and executive branches of the 
government are chosen by the people, and the electors 
have the qualifications necessary for electors of the most 
numerous branch of the state legislatures ; by reference 
to the state constitutions, we find, that the electors for 
the most numerous branch of the state legislature are 
substantially the whole body of the people ; hence, the 
government of the United States is a democracy, and as 
it is, by former propositions, a federative republic, it is 
a democratic federative republic. 

§511. Proposition 4th. The Democracy of the 
United States is a Representative Democracy. 

By Art. 1, Sect. 2d, the representatives are chosen, &c. 
By Sect. 3d, the Senate is chosen by the legislature ; and,, 
by reference to the state constitutions it will be seen, the 
legislatures are chosen by the people ; by Art. 2d, 
Sect. 1st, the executive is chosen by electors, appointed 
in such manner as the legislature may direct. By Art. 
2d, Sect. 2d, the judiciary is appointed by the President 
and Senate ; hence all the branches of the government 
are directly or indirectly chosen by the people ; and 
hence the government is a representative democracy. 

§ 512. Proposition 5th. The foundation of the 
government is the consent of the people. 

In the Declaration of Independence, it is laid down 
that governments derive their just powers from the con- 
sent of the governed, and the preamble to the Constitution 
asserts that it was formed by " we the people." The 
ratifications of all the states commence with " We the 
delegates of the people ;' r hence the Constitution is, as it 
purports to be, founded only on the consent of the 
people. 

§ 513. Proposition 6th. The sanction of the gov- 
ernment is responsibility to the people. 

By Art. 1, Sect. 2d, of the Constitution, the representa- 
tives are chosen every second year ; hence they are, at 



STATE GOVERNMENTS. 199 

the end of that time, directly amenable to the people ; in 
addition to which, each individual member is liable to 
expulsion by the whole ; by Art. 2d, Sect. 1st, the execu- 
tive is chosen every four years, and is therefore likewise 
responsible to the people at the end of that time ; by 
Art. 1, Sect. 3, he may be impeached, and by the votes 
of two-thirds of the Senate, removed from office for 
treason, bribery, and other high crimes and misdemean- 
ours. He is, therefore, both directly and indirectly 
responsible to the people. By Art. 2d, Sect. 2d, the 
President, in conjunction with the Senate, has the power 
of appointing ambassadors, judges, and all other superior 
officers ; and by the declaration of Congress, and the 
practical construction of the Constitution, 1 he has also 
the power of removing them ; these officers consequently 
are all of them directly responsible to the President, and 
by Art. 1st, Sect. 2d, they may also be impeached ; they 
are, therefore, responsible to the people through the 
President, and likewise by impeachment. The judiciary 
is the only part of the government not directly responsi- 
ble to the President ; but they are indirectly ; for, by 
Art. 2d, Sect. 2d, they are appointed by the President, 
who is himself responsible, and by Art. 1st, Sect. 2d, 
they may be impeached by the representatives of the 
people, who hold the sole power of impeachment ; all 
branches of the government, therefore, and all its 
officers, are made responsible to the people ; hence, the 
sanction of the government is responsibility to the 
people. 

§ 514. Proposition 7th. The principle of the govern- 
ment is the virtue of the people. 

This follows from several considerations : in a des- 
potism or monarchy, he who executes the laws also 
makes them ; but in a popular government, he who 
executes the laws is also subject to them. The 

1 Chapter 2, Section 31 a. 



200 STATE GOVERNMENTS. 

monarch, then, who by bad counsel or negligence 
allows the laws to go unexecuted, may easily repair 
the evil by changing his counsellors, or correcting his 
negligence But when, in a popular government, 1 the 
laws cease to be executed, as this can happen only from 
conniption, the state is already lost. Thus, when after 
the death of Charles I. the English attempted to estab- 
lish a republic, they could not, because those who took 
part in public affairs had no virtue, and one party was 
continually opposed and put down by another, till at 
last, the people seeking a democracy, and finding they 
had no part in it, reposed at last upon the same govern- 
ment they had before proscribed. Thus also in Rome, — 
when Sylla offered the people liberty, they would not 
accept it because they had not virtue enough : and ever 
after, when despotism became intolerable, they struck a 
blow at the tyrant, but never at the tyranny. They 
had not virtue enough to change the form of government. 
Thus also will it be with the people of the United 
States when they become corrupted. For half a cen- 
tury, the Constitution and laws have been executed and 
respected, because the people have retained a portion 
of the same civic virtues which preserved their country 
in the Revolution, and rescued it from the hands of 
hereditary corruption ; but, whenever the people shall 
have become so insensible to virtue as to allow men to 
triumph over laws, they will be corrupt, and the republic 
lost. 

§ 515. Proposition 8th. The Constitution of the 
United States proceeds from the people in their sove- 
reign capacity. 

By the 7th Article of the Constitution it was to be- 
come valid, among the parties to it, when ratified by the 
conventions of nine states ; accompanying the Consti- 
tution was a resolution of the convention forming it, 

1 Montesquieu's Spirit of Laws, book 3, chap. 3. 



STATE GOVERNMENTS. 201 

that it be laid before Congress, with a recommendation 
that it " be submitted to a convention of delegates, 
chosen in each state by the people thereof, for their 
assent and ratification." Agreeably to this recommend- 
ation and the article above cited, it was referred to con- 
ventions of the people within their several states"; 
these conventions came from the people in their original, 
sovereign, social capacity ; they were assembled with- 
out any other form than what they imposed upon them- 
selves, without any limits as to the authority they 
should either give or take away, — and in the name of 
the people only gave their assent to the proposed gov- 
ernment ; all these ratifications were made in the name 1 
of the people, and not the states. Without these ratifi- 
cations the instrument would have been invalid, and 
with them it received all the authority of a limited gov- 
ernment over the people and the states. Hence, it is 
obvious, that the Constitution proceeded from the peo- 
ple in their sovereign capacity. 

§ 516. Proposition 9th. The Constitution of the 
United States acts upon both individuals and states. 

That it acts upon states imperatively is obvious 
enough ; for every article of the Constitution refers to 
states, and requires something to be done by them, or 
prohibits them from doing something. Thus by Art. 1, 
Sect. 3, they are required to choose senators ; by Sect. 
4, to prescribe the times, places, and manner of holding 
elections for senators and representatives, and by Sect. 
10, are prohibited every act which appertains to national 
sovereignty. 

It acts upon individuals thus : by the powers vested 
in Congress by Art. 1, Sect. 8, individuals maybe sub- 
jected, by the laws of the United States, directly to tax- 
ation, to militia service, to the rules of naturalization, to 
rules for the punishment of felonies on the high seas, — 

1 4 Elliott's Debates, 247, 248. 



202 STATE GOVERNMENTS. 

and also through the powers for the regulation of com- 
merce, and for regulating the coinage : in all these, and 
in many other respects, the Constitution and laws of 
the United States act directly on individuals. 

§ 517. Proposition 10th. The Constitutions of the 
states act upon individuals, but not upon the government 
of the United States, nor upon each other. 

1. They act upon individuals, because nearly all the 
state legislation is municipal, and refers to individuals 
only. Thus, the establishment of municipal courts, 
the organization of juries, the division of towns, the in- 
corporation of local societies, and local taxation, all em- 
anate from the state laws. 2. They do not act upon each 
other, because, as it respects each other, the states are 
all precisely equal, and have no authority over one an- 
other ; it is no exception to this, that the Constitution 
has given a judgment in one state full force and validity 
in another ; for this is a consequence of national, not 
state laws ; even foreign judgments axe prima facie evi- 
dence in other countries. 3. They cannot exercise any 
power over the national government ; for that would 
place the national government at the mercy of any one 
of the states, and would be inconsistent with its exist- 
ence. Thus the state governments cannot tax the stocks 
of the United States government, nor any of the con- 
stitutional means employed by government for constitu- 
tional ends. 1 

§ 518. Proposition 11th. The government of the 
United States is not a mere league. 

The proof of this may be found, 1st, in the intention 
of those who framed the Constitution ; and 2dly, from 
the powers vested in the framers of it. 

The evil intended to be remedied was that of a con- 
federation, or league without a sanction, and conse- 
quently without the means of enforcing its decrees. 

* M'Cullough vs. State of Maryland, 4 Wheaton, 316. 



STATE GOVERNMENTS. 203 

Such a confederation is in theory weak, and all experi- 
ence has proved it so. By the third article of the old 
Confederation, the nature of it was defined, and charac- 
terized as a " firm league of friendship for each other, 
for their common defence, the security of their liberties, 
and general welfare." The powers of the Confedera- 
tion, or League, were vested in a Congress, without a Ju- 
diciary, and without an Executive ; in this Congress, the 
states were represented in their sovereign capacity, and 
treated with each other as with foreign nations ; the peo- 
ple, moreover, were in no manner amenable to the judg- 
ments of the Congress ; that body had no power over 
them ; they were answerable only to their state govern- 
ments ; this Confederation, then, had no feature of a gov- 
ernment, and was in fact a simple meeting of ambassadors, 
vested with more than ordinary powers. This, then, was 
the evil to be remedied, — the want of a government. Look- 
ing then to the existing evil, and to the object in view, 
we should conclude, a priori, that the Constitution thus 
formed was intended to be a government, and not a 
league. 2dly. But, if we go further, and look to the 
actual instructions of the delegates, we shall find, that 
the intention was to constitute a government, and pre- 
serve the union. Thus, the express words used in the 
credentials of the delegates from Connecticut, New- 
York, and New-Jersey, were to take such measures as 
were necessary to ''render the federal constitution ade- 
quate to the exigencies of the government and the pres- 
ervation of the union." And such was the substance 
of the instructions from the majority of the states. 
Hence, we see that the intention was to form a govern- 
ment, and not a league. 

§ 519. But 2dly, That they did form a government, 
and not a league, appears from the terms of the Consti- 
tution ; for by the articles of confederation, and those of 
all leagues, purporting to be such, the states constitut- 
ing them reserved to themselves an equal vote in the 



204 STATE GOVERNMENTS. 

Congress ; indeed, this is of the essence of all leagues ; 
but, by the Constitution of the United States, the states 
have not an equal vote in the Congress, but in the House 
of Representatives vote by numbers, and in the Senate, 
though the representation is equal, the vote is by persons. 
Again, the acts of leagues bind only the states that com- 
pose them, and do not operate on persons. In the Con- 
stitution of the United States, however, the laws ope- 
rate not only upon the states, but, as we have shown by 
Prop. 9th, upon the people at large, and individually. 
Besides these considerations, the division of the powers 
granted, into Executive, Legislative, and Judicial, — the 
mode of electing the President, and the careful con- 
struction of the Judiciary, all incontestibly prove that 
the Constitution constitutes a government, and not a 
league. 1 

§ 520. Proposition 12th. The government of the 
United States is sovereign in its national capacity. 

By our first definition, Sovereignty is the highest 
power in a state ; and for a state or nation to be sove- 
reign, it must govern itself, and be independent of other 
powers. 2 Now, if we apply these characteristics to the 
government of the United States, we find that it pos- 
sesses them all. 1st. It is the highest power in a na- 
tional sense, because it is the only power which, in the 
United States, can exercise national authority ; it is the 
only power which can lay taxes upon all the states ; the 
only power which can declare war, make peace, and 
enter into treaties, coin money, or regulate commerce, 

1 Note. — The obvious intention and understanding of the framers 
of the Constitution upon this point, might be illustrated by the 
quotation of many passages. I shall only give one. 

" A government by compact is no government at all. You 
may as well go back to your congressional federal government, 
where, in the character of ambassadors, they may form treaties 
for each state." 

Mr. Morris, Debates in the Federal Convention. 

2 Vattel's Law of Nations, p. 16. 



STATE GOVERNMENTS. 205 

or in short do any act characteristic of national sove- 
reignty. 2d. It governs itself, for, by Art. 1st. Sect. 
8th, Art. 2d, Sect. 2d, Art. 3d, Sect. 2d and Sect. 3d of 
the Constitution, the government of the United States is 
vested with all the powers of self-government. 3d. It 
is independent of all other powers ; for, by the Declara- 
tion of Independence, and the subsequent successful ter- 
mination of the War of the Revolution, and the adop- 
tion of the Constitution by the states then composing 
the Confederation, the United States became indepen- 
dent of all foreign nations ; and we have already shown, 
by Prop. 10th, that the states could nbt control the gen- 
eral government within constitutional limits, therefore 
the United States are sovereign in their national ca- 
pacity. 

§ 521. Proposition 13th. The Governments of the 
states are sovereign in a municipal, and are not sove- 
reign in a national capacity. 

By the 10th article of the amendments to the Con- 
stitution of the United States, " The powers not dele- 
gated to the United States by the Constitution, nor pro- 
hibited by it to the states, are reserved to the states re- 
spectively, or to the people." Now the power to make 
municipal laws, — by which are meant all laws which 
concern only the state, directly and immediately, — is 
not vested in Congress, neither is it prohibited to the 
states, it is consequently among the reserved rights of 
the states and the people : and by the various state 
constitutions, we find that the people have vested it, so 
far as is not inconsistent with personal rights, in the state 
legislatures. It is therefore their proper prerogative to 
exercise it. Thus, all the laws relative to state taxa- 
tion, chartered companies, eleemosynary institutions, 
and police regulations, are within the powers of state 
legislatures. They are, therefore, sovereign in their 
municipal capacity. They are not sovereign in a na- 
S 



206 STATE GOVERNMENTS 

tional capacity, because in that respect they are nofc 
" the highest power." The government of the United 
States, as we have seen by Proposition 12th, is sove- 
reign in a national sense, and it is only sovereign in that 
sense ; for, by Art. 1, Sec. 10, the states are forbidden 
to exercise any power characteristic of national sove- 
reignty ; thus, they cannot make peace, or declare war, 
tax imports and exports, make treaties, and coin money ; 
they are, therefore, not sovereign in that sense. 

§ 522. Proposition 14th. The government of the 
United States is superior to, and sovereign over the gov- 
ernments of the states, in those cases in which they are 
constitutionally brought into collision. 

This may be proved by examples drawn from each of 
the great departments of the governments. 1. Of the 
Legislative. Thus, Congress have the power to tax 
articles of consumption ; so have the states ; now, 
should Congress and the states both tax the same arti- 
cle, the state cannot, by excessive taxation, exhaust 
the article so as to prevent the collection of the United 
States tax ; again, the states may grant, as New-York 
did, a peculiar privilege to navigate the waters of their 
states ; but should another person get a coasting license 
under the navigation laws of the United States, the mo- 
nopoly must yield to the laws of Congress ; again, we 
have already seen that Congress can constitutionally 
make a law securing priority of payments, and such a 
law, whatever the state laws may be, must have prece- 
dence. 

$ 523. 2. Of the Judiciary. By Art. 3d, Sect. 1st, 
of the Constitution, the judicial power is expressly ex- 
tended to all cases in which the United States are a 
party, and to all controversies between two or more 
states. In all judicial matters, therefore, between the 
United States and the states, — the United States gov- 
ernment are supreme, and all matters in relation to such 



.STATE GOVERNMENTS. 207 

controversies must be decided according to the Consti- 
tution and laws of the United States. The legislatures 
of the states cannot annul the judgments, or determine 
the jurisdiction of the courts of the United States. 1 

§ 524. 3. Of the Executive. By Art. 2d, Sect. 2d, 
of the Constitution, the President is commander-in-chief 
of the militia of the several states when called into ser- 
vice ; and as a consequence of this power, whenever the 
troops of the United States, and the militia are on ser- 
vice together, the officer commanding the troops of the 
United States commands the whole. 

Hence we see, that in all cases where there can be a 
constitutional collision between the authorities of the 
United States and those of the states, the former are 
superior to, and sovereign over the latter. 

§ 525. Proposition 15th. The people of the United 
States are one nation. 

This may be shown by considerations drawn from 
various sources, 1st. We see by the adoption, and sub- 
sequent history of the Constitution, that the United 
States have, for nearly half a century, been living under 
one government ; and, by proposition 12th, that this gov- 
ernment possesses entire national sovereignty ; with re- 
spect, therefore, to its exterior relations, the United 
States are one nation ; they are represented, and known 
officially, as such, all over the world. Again, they are 
such internally as well as externally ; for, by Proposi- 
tion 8th, we have demonstrated that the Constitution of 
the United States proceeds from the people in their sove- 
reign capacity. It did not proceed from the states, as 
separate communities, and throughout all the proceed- 
ings on its adoption, this idea strongly predominated. 
States are recognised throughout the Constitution, but 
only as instruments in the hands of the same people who 
are alike the authors, both of the Union and of the 

»5Cranch, 115. 



208 STATE GOVERNMENTS. 

states. The people, on the occasion of the adoption of 
the Constitution, acted in their original, sovereign, na- 
tional capacity. Having thus originated, we see that 
the Constitution is binding, not upon the states only, but 
upon the whole people. It acts upon them individually, 
and therefore as one nation. This we have seen in 
Proposition 9th. Further, no small proof of this propo- 
sition, like that of others, may be derived from a view 
of the object and intentions of those who instituted the 
government. The single object of the present govern- 
ment was to perpetuate the union, and consolidate the 
national interests. This is expressly stated in all the 
proceedings prior to the formation of the Constitution, 
in the debates of the Federal Convention, 1 and in the 
admirable letter 2 of General Washington, transmitting 
he Constitution to the governors of the several states. 
1 In all our deliberations on this subject, we kept stea- 
lily in our view that which appears to us the greatest 
nterest of every true American, the consolidation of our 
jnion, in which is involved our prosperity, felicity, 
safety, — perhaps our national existence." These sen- 
iments of Washington were doubtless those of all, at 
.hat time, except a very few, who were jealous lest the 
national should entirely destroy the state governments. 
Time has shown that such jealousies were wholly illu- 
sory, and the only danger is, that the states may en- 
croach too far on the prerogatives of the general gov- 
ernment. 

§ 526. Another consideration in favour of the entire 
unity of the nation, and its future continuance, may be 
found in the unity of its language and manners. It is 
believed that no nation on earth is so entirely homo- 
geneous. If we look to Great Britain, we find that 
people composed of four different nations, — the Welch, 
English, Irish, and Scotch. Between the original lan- 

1 4 Elliott's Debates, 56, 137. 2 Idem. 348. 



STATE GOVERNMENTS. 209 

guages of these people there is scarcely a resemblance. 
If we limit the examination to England, we find the 
dialects of London and Yorkshire more diverse than 
those of the extreme parts of our union. If we look to 
France, it is the same. Germany also is composed of 
people speaking different tongues. The vast empire of 
China is the same. But how is it in the United States ] 
From Maine to Missouri, through all the United States, 
their language is the same ; there is no change of tongue : 
the only discoverable difference is in the use of particu- 
lar words, which occasionally betray the birth of the 
speaker. It is true there are occasional settlements of 
Germans, but they are too few in comparison with the 
mass, to mark any particular district with a distinct 
language. 

With respect to written language, it is everywhere 
the same. Even the Grecian, pure as it is found in 
Homer, contains more dialects than can be found in the 
whole compass of American authors. 

§ 527. The same remark which we have made with 
respect to language, may be affixed with nearly equal 
force to manners. There are few customs or habits in 
one portion of the union, not to be found in another ; 
none which could give one district a distinct national 
character from another. 

The United States are, therefore, emphatically one 
nation. Politically, socially, morally, they are stamped 
with one character, and must share the same destiny. 

§ 528. Proposition 16th. The Government of the 
United States is a government of majorities. 

In the conventions of the people which ratified the 
Constitution, a majority in any one convention made the 
decision ; for no other rule could be applied when they 
were subordinate to no authority but their own. But in 
the Constitution of the United States, and in those of the 
several states, this principle is everywhere manifest. 
1st, Of the Legislature; members of the House of 
S2 



210 STATE GOVKRNMKNTft. 

Representatives are chosen by majorities of the people, 
and the House of Representatives decide by majorities ; 
and by Art. 1st, Sect. 5, a majority constitutes a quorum. 
Members of the Senate are chosen by majorities of the 
Legislatures, who are themselves chosen by majorities 
of the people. A majority of the Senate likewise decide 
all legislative questions, — except one, which will be 
hereafter mentioned. 

§ 529. The Executive is chosen by the majority of the 
electors, and when there is no such majority, by a ma- 
jority of the state representations in the House. The 
electors are chosen by majorities of the people, or of 
the state legislatures. It is true, there is a possibility, by 
a combination of majorities in minor districts, that the 
executive should be elected by a minority of the votes 
of persons ; but this is a contingent occurrence of very 
remote probability. It is a case not within the con- 
templation of the Constitution, which could only provide 
for the common course of human events. 3. Of the 
Judiciary. The judges are appointed by the President, 
who is elected by a majority ; and their appointments are 
confirmed by the Senate, who also are elected by a ma- 
jority. They are, therefore, appointed indirectly by a 
majority. But the theory of the Constitution required 
that they who, of all the members of the government, 
should be purest from every touch of violence or cor- 
ruption, should by many checks and guards be placed as 
remote as possible from popular action. 

§ 530. The exceptions to this almost universal rule 
are cases of obvious and urgent propriety. 1st, The 
Senate cannot confirm a treaty without the concurrence 
of two-thirds of its members. The reason of this is, 
that treaties have, by the Constitution, the validity of 
laws ; yet they are made by the Senate, and President, 
without the concurrence of the Representatives, and 
therefore ought to be enacted by the Senate with more 
than usual unanimity. It is therefore provided, that 



STATE GOVERNMENTS. 211 

two-thirds must concur in the confirmation of a treaty. 
2d. The second exception is in the case of an impeach- 
ment. This also requires hvo-thirds to make a convic- 
tion. This is in order to give greater certainty, accuracy, 
and solemnity to convictions involving life, property, 
and reputation. 

Thus we see that the whole structure of the govern- 
ment is based upon the acts of majorities, and that these 
majorities, at last, rest upon a majority of the whole 
people. 

§ 531. Proposition 17th. The Government oj the 
United States is perpetual, unless abrogated by the will of 
a majority of the whole people. 

A government can only be abrogated by the same 
power which brought it into existence. Now by Propo- 
sition 8th, the Constitution of the United States proceeds 
from the people in their sovereign capacity. The peo- 
ple then, in their sovereign capacity only, can abrogate 
it. That they have the power to do so is obvious 
enough ; it is only asserting the common right of all 
nations to institute, alter, and amend their forms of 
government. That is the right of revolution. Till that 
right is exercised, the Constitution is perpetual. 

§ 532. But what is meant by the people in their 
sovereign capacity ? Are not the states that sovereignty ? 
No ; for we find the following provisions among the 
amendments to the Constitution. 

Article 9th. The enumeration in this constitution of 
certain rights, shall not be construed to deny or disparage 
others retained by the people. 

Article I Oth. The powers not delegated to the United 
States by the Constitution, nor prohibited by it to the 
states, are reserved to the states respectively, or to the 
people. 

Now in these articles there are three sets of rights 
recognised. 1. Rights granted to the government of 
the United States. 2. Rights granted, that is, "not 



212 STATE GOVERNMENTS. 

prohibited by it" to the states. 3. Rights retained by 
the people. Now the states, as here understood, the 
state governments cannot represent the original sove- 
reignty of the people, because out of three portions into 
which the people have voluntarily divided their sove- 
reignty, the states possess only one. This must be so, 
or there is no meaning in those articles of the Consti- 
tution. The states, therefore, imbody only a part of 
the sovereignty of the people, and in the same sense 
that, mathematically, a part is not equal to the whole, 
they cannot perform the acts of a greater power ; they 
cannot unmake what they never had power to make. 

§ 533. But, may not the people of a state, assembled 
in its sovereign capacity, by means of delegates or 
otherwise, abrogate the Constitution as it respects itself, 
and secede from the Union 1 No. By Proposition 9th, 
the Constitution acts upon individuals. Now, the instant 
the people of a state cease to act officially through its 
state governments, they act individually, and are upon 
the level with the people of a town, county, or two states 
together. The Constitution acts upon individuals with- 
out any reference to state lines. In what way, then, could 
they escape the influence of the laws 1 Had they never 
voluntarily come under them, these laws could not have had 
any influence over them ; or had they fixed a period to 
the duration of that influence, then at the expiration of 
that time they could have withdrawn. But, having 
taken neither of these positions, they can escape from 
the influence of their own act only by a revolution, and 
a revolution can be made only by a majority. A ma- 
jority may do it, because, when government is to be 
thrown off, and men assume their original rights, there 
is no superior authority to limit the acts of a majority. 
Any less number, whether composing a state or parts 
of several states cannot do it without subjecting them- 
selves to the penalties of treason, — as they would 
not have the power to revolutionize the government, but 



STATE GOVERNMENTS. 213 

would only be acting contrary to its laws and the exist- 
ing authorities. 

§ 534. Thus we have seen that a state cannot abro- 
gate the Constitution, because its government is vested 
with only a portion of the sovereignty : and the people 
of that state cannot do it (unless they are a majority of 
the whole Union), because they must act individually, 
and the laws of the government acting upon individuals, 
any resistance by them to any constitutional exercise of 
authority would incur the penalties of treason* 

It follows then, necessarily, that the government of 
the United States is perpetual, unless abrogated by the 
will of the majority of the whole people. 

§ 535. We have now recited, with such proof as 
seems to us sufficient, the propositions which include the 
nature, principles, and relations of the United States 
Government. We have established ; 

1. That this Government is a Democratic Federative 
Republic ; 

2. That the Democracy of the United States is a 
Representative Democracy ; 

3. That the foundation of this Government is the 
consent of, and the sanction of it is responsibility to, the 
people ; 

4. That the great conservative principle of the 
government is the virtue of the people ; 

5. That the Constitution of the United States proceeds 
from the people in their sovereign capacity, and that it 
acts upon individuals as well as states. 

6. That the constitutions of the states act upon 
individuals, but not upon the Government of the United 
States, nor upon each other ; 

7. That the Government of the United States is 
sovereign in a national, and the states in a municipal 
capacity ; 

8. That the Government of the United States, is in 



214 STATE GOVERNMENTS. 

case of constitutional collision, sovereign over, and 
superior to the state governments ; 

9. That the Government of the United States is not 
merely a league ; 

10. That the Government of the United States is a 
government of majorities ; 

1 1. That the Government of the United States is per- 
petual, unless abrogated by the will of a majority of the 
whole people ; and that, consequently, no state can 
secede. 

§ 536. With these propositions impressed upon the 
mind it is thought that little misconception can exist 
upon the nature and construction of the United States 
government. Some of them have, it is true, been dis- 
puted in times of warmth and excitement ; but all of 
them have been supported by a great majority of the 
American people, and illustrated by the acts of public 
bodies, and the works of distinguished statesmen from 
the Revolution to the present time. 



BOOK II. 



PRACTICAL OPERATION OF THE NATIONAL AND 
STATE GOVERNMENTS. 



CHAPTER I. 

PRACTICAL OPERATION OF THE NATIONAL CONSTITUTION. 

§ 537. When the Constitution had been ratified by 
the requisite number of states, it had acquired its legal 
force, but was inert till properly put into operation. 
The people had made it an instrument of great and 
beneficent powers, but their action under it was necessary 
to give it life. The mode of doing this had been pro- 
vided by the convention. They had " resolved that, as 
soon as the conventions of nine states should have ratified 
the Constitution, Congress should fix a day on which 
electors should be appointed by the states which should 
have ratified the same, and a day on which electors 
should assemble to vote for President, and the time and 
place of commencing proceedings under the Constitution. 
That, after such publication, the electors should be 
appointed, and the senators and representatives elected," 
and such other regulations as were necessary, &c. ; and 
that, " after the President was elected, he and Congress 



216 PRACTICAL OPERATION OF 

should, without delay, proceed to execute the Consti- 
tution." 1 

§ 538. Accordingly Congress, after the ratification of 
a sufficient number of states in July, 1788, 2 Ordered, 
that the several ratifications of the Constitution of the 
United States be referred to a committee, to examine and 
report an act for putting said constitution into operation. 
A committee was appointed, and the following resolution 
passed, 3 " Resolved, that the first Wednesday in January 
next be the day for appointing the electors in the several 
states which, before said day, shall have ratified the 
Constitution ; that the first day in February next be the 
day for the electors to assemble in their respective states, 
and vote for a President ; and that the first Wednesday 
in March next be the time, and the present seat of Con- 
gress the place for commencing proceedings under said 
Constitution." 

$ 539. In pursuance of this resolution, the elections 
in the several states were held, at the time appointed, 
and on Wednesday, the 4th of March, 1789, the Consti- 
tution went into practical operation. On the 30th April, 
George Washington, unanimously elected, was inaugu- 
rated President of the United States. Subsequently to 
this, North Carolina and Rhode Island, which had not 
then ratified, joined the Union. Soon after, a number of 
amendments, the effect of which we have heretofore 
considered, were recommended to the states by two- 
thirds of Congress, and adopted. 

§ 540. Thus the operation of the Federal Govern- 
ment was begun. The arrangement of the Judiciary, 
the rules of proceedings, the organization of the depart- 
ments, and the appointment of officers, were within the 
power of Congress and the Executive, and formed the 
earliest objects of their consideration. 

^541. In practice, as well as theory, the government 

1 4 Elliott's Debates, 249. 2 Idem. 221. 3 Id. 222. 



THE NATIONAL CONSTITUTION. 217 

is divided into three great departments, having distinct 
duties to perform, — the Executive, the Legislative, and 
the Judicial ; in this order, we shall consider the practical 
operation of the government. 

1. OF THE EXECUTIVE. 

§ 542. By Art. 2d, Sect. 1st, of the Constitution, the 
executive power is vested in the President. By Sect. 2d, 
he is commander-in-chief o$ the army, of the navy, and 
of the militia when called into actual service. He may 
require the opinion in writing of the principal officers of 
the executive departments, upon any subject relating to 
the duties of their offices, and has power to grant re- 
prieves, pardons, &c. &c. He has the appointment, in 
conjunction with the Senate, of ambassadors, other pub- 
lic ministers, consuls, judges of the Supreme Court, and 
all other officers of the United States, except those 
inferior officers whose appointment the Congress may 
vest in the heads of departments, courts, &c. He re- 
ceives ambassadors and other public officers, takes care 
that the laws are faithfully executed, and commissions 
officers. 

§ 543. These are all the general duties annexed by 
the Constitution to the office of President. We have 
already seen that they could not be performed, till 
Congress had first erected the offices which were to be 
filled, and enacted the laws which were to be executed. 
We shall now see how this was done. 

§ 544. The constitutional duties above enumerated 
comprehend all the executive duties of the government; 
for the President is the only executive officer known to 
the Constitution, and the only one responsible to the 
people. The duties, however, are obviously too numer- 
ous and various for one man ; hence, the Constitution 
contemplated the appointment of inferior officers, and 
the division of labour among subordinates. For this 
purpose Congress has, at different times, created the 
T 



18 PRACTICAL OPERATION OF 

Departments of State, Treasury, War, Navy, Post-office, 
and Mint. The duties of each of these departments 
have been prescribed, and may be considered separately. 

1. OF THE DEPARTMENT OF STATE. 

§ 545. This department was created by the act of 
the 3 5th September, 1789. The presiding officer is 
called Secretary of State, and, like other officers, is 
commissioned, with the advice and consent of the 
Senate. His duty is to conduct the foreign affairs of 
the United States, whether by correspondence, com- 
missions, instructions, or memorials, with foreign pow- 
ers or public ministers. He keeps the seal of the 
United States and affixes it to all civil commissions, 
provided they have the signature of the President. He 
is intrusted with the publication and distribution of all 
acts and resolutions of Congress, and all Treaties with 
Foreign nations and Indian Tribes. 1 He preserves the 
original of all treaties, public documents, laws, and cor- 
respondence with foreign powers : he preserves copies 
of the several statutes of the states, grants passports to 
citizens, and controls the Patent Office. 

§ 546. These duties may be divided into classes. 
1, Those which concern foreign intercourse ; 2. Those 
which concern the preservation and distribution of the 
laws ; 3. Which regard the authenticity of commissions ; 
4. Those which concern copyrights and patents. 

1. Of Foreign Intercourse. It is necessary that 
nations should hold intercourse together, for the purpose 
of regulating trade, avoiding injuries, and terminating 
differences. It is equally obvious, that they cannot treat 
together immediately, as two individuals ; they must, 
therefore, hold their conferences by means of delegates, 
that is, by public ministers. 2 



1 Act of April 20th, 1818. 2 VattePs Laws of Nations, 

book IA chap. V. sect. 55, 56. 






THE NATIONAL CONSTITUTION. 219 

§ 547. A public minister properly signifies any one 
charged with public affairs, but is here understood as 
one who is charged ivith the care of public affairs at a 
foreign court. Of these there are now several orders. 

§ 548. The highest order is one which properly 
represents the government, or sovereignly, and is entitled 
to act for it upon all occasions. A person of this rank 
is called an Ambassador. 1 

§ 549. The next rank is that of Envoy. This term 
signifies one who is sent, and means a minister sent for 
a particular purpose, as to adjust a special commercial 
treaty, or arrange disputed boundaries. There are 
envoys ordinary and extraordinary : of the same rank 
also are ministers plenipotentiary, who are sent with 
powers to make a particular treaty ; thus, Messrs. 
Adams, Clay, &c. were Ministers Plenipotentiary to 
form the Treaty of Peace at Ghent. 

§ 550. The third order is that of Ministers Resident, 
or Charge d'affaires, which means one who is charged 
with the ordinary affairs of the nation at a foreign court. 

§ 551. These are all the orders of public ministers, 
as commonly understood, resident at foreign courts. 
There are, however, several other classes of public 
officers, through whom intercourse is. held with foreign 
nations. 

§ 552. To each foreign embassy is attached a Secre- 
tary of Legation : this officer performs the duties of a 
secretary, or clerk to the mission, and is frequently left 
in charge of affairs when a minister is recalled. 

§ 553. Consuls are commercial agents, appointed by 
the government to oversee, and take charge of the affairs 
of individuals when they have no agent of their own 
present. 

§ 554. The Haws of the United Stales prescribe the 

1 Vattel's Laws of Nations, chap. VI. sect. 71, 72. * Act of 
April, 1793. 



220 PRACTICAL OPERATION OF 

following duties to American Consuls. 1. It is made 
their duty to act as administrators upon the estate of 
such American citizens as shall die abroad, without 
leaving a legal representative, partner, or trustee, and at | 

the end of one year account to the Treasury of the 
United States for his effects, &c. &c. 

§ 555. 2. "When vessels are stranded, it is their duty 
to take all proper measures to save the same, and when 
no master, owner, or consignee is present to take care 
of the goods and effects, and deliver the proceeds to the 
owners. 

§ 556. 3. ! It is their duty to receive from vessels 
sailing from the ports of the United States their Regis- 
ters, Sea Letters, Passports, &c, and when said vessel 
produces her clearance, to return them to the master. 

§ 557. 4. Whenever a. ship is sold, or her crew dis- 
charged in a foreign port, to receive from the master 
one month's pay from each seaman, to constitute a fund 
for the maintenance of destitute American seamen, and to 
account for the same with the Treasury every six months. 

§ 558. 5. It is the duty of Consuls to provide for the 
support and passage to the United States of destitute 
American seamen, in a reasonable manner, and at the 
expense of the United States. For the proper perform- 
ance of these duties, they are obliged to give bonds 
with securities, and for their time and trouble are 
allowed certain specified fees ; their delinquencies are 
punished by fine and imprisonment. 

§ 559. These consular agencies are established in 
nearly all the countries and ports where the United 
States have any commerce. Their great object is to 
ascertain the legality of the trade of American vessels 
in foreign ports, and afford protection and relief to 
American seamen and citizens, who may be in foreign 
countries. 

1 Act of February* 1803k 



THE NATIONAL CONSTITUTION. 221 

§ 560. 2. Credentials. A public minister is known by 
his credentials, betters of Credence are the instruments 
which authorize and establish a minister in his character, 
with the government to whom they are addressed : they 
are his general Letter of Attorney. 

§ 561. Instructions are the secret letter of directions 
given by a government to its minister, to inform him how 
he is to act, and what he is to perform. 

§ 562. For the purpose of preserving the dignity of 
their respective governments, and performing their duties 
with safety, public ministers and their servants are by 
the laws of nations 2 allowed certain privileges ; viz. 

§ 563. 1. The persons of ministers are sacred and 
inviolable among all nations. This privilege extends to 
them from the time they first enter the country to which 
they are sent. So also they are allowed personal safety 
in all countries through which they pass. 

§ 564. 2 A public minister has an entire independence 
from the jurisdiction and authority of the state where 
he resides. To these rules there is an 3 exception i in 
case of an ambassador's converting these privileges into 
licentiousness. If an ambassador abuses his privileges, 
and commits wrong, he may be restrained ; 1. By appli- 
cation to his master, and if he fail to recall him, by 
ordering him out of the country. 2. In case he take up 
arms, or commit open violence, he may be quelled by 
force. In case he intrigue, or form a conspiracy, he 
may be arrested, or otherwise disposed of according to 
the exigency of the case. 4 A well known instance of 
that kind occurred in this country, in the case of Genet, 
the French minister, during the administration of Gen- 
eral Washington. The President only requested the 
French government to recall Mr. Genet, which was 



1 Vattel, book IV. chap. VI. sect. 76, 77. 2 Idem. sect. 81, 

83, 92, 93. 3 Pitkin's Civ. Hist. vol. II. 4 Vattel, book IV. 
chap. VII. 

T 2 



222 PRACTICAL OPERATION OF 

done ; no doubt harsher measures would have been 
justifiable. 

§ 565. l A Consul is not such a public minister as to 
be entitled to the privileges of that character, nor is he 
under the special protection of the laws of nations. 

§ 566. The credentials of foreign ministers are re- 
ceived by the Secretary of State, and examined ; all the 
business and correspondence is carried on by him : it is 
in writing, and placed on record. 

§ 567. Passports to visit foreign countries are 
made out by the Secretary of State. Passport properly 
signifies a safe conduct in war. In such case, the 
government or authority granting them is bound to make 
good any damage the bearer of them might suffer. In 
peace, it is little more than a certificate of citizenship, and 
entitles the bearer to safety and civility among foreign 
nations, so far as respects the public authorities, when 
the laws are not violated. 

§ 568. 2. Preservation and publication of the Laws. 
The originals of all treaties, laws, resolutions, and 
diplomatic documents are deposited in the office of the 
Secretary of State. The laws, resolutions, and orders 
of each Congress are printed, by direction of the Secre- 
tary of State, and distributed among heads of depart- 
ments, members of Congress, public libraries, and the 
several states of the Union. It is made the duty of the 
Secretary to procure copies of the statutes of the several 
stales, and preserve them. 

i .§ 569. The laws, resolutions, and orders of Congress 
are annually printed, under the direction of the Secretary, 
in three newspapers, in each state and territory of the 
United States. These papers are selected by him, and 
receive a fixed compensation for the publication. 

§570. 2 In addition to the publication of the \ laws 
here mentioned, the Secretary is charged with the 

1 Kent's Comm. voL I. p. 43, 2 Resolution of April, 1818. 



THE NATIONAL CONSTITUTION. 223 

formation, and publication of a biennial catalogue, for the 
use of Congress and the public likewise, of all the 
officers, civil and military, of the United States, with 
their compensation, the state where born and where 
employed ; and also the names, force, and condition of 
all the vessels belonging to the United States, when and 
where built. This Register informs Congress, and 
through them the people, the exact number and location 
of all the officers of the United States, and the amount 
required for their support. 

§571. 3. Authenticity of Commissions. It is neces- 
sary that all commissions of public officers should be 
rendered authentic by certain signs and signatures. For 
this purpose, it is provided that all commissions shall 
be signed by the President, who is the appointing 
power, and sealed with the seal of the United States. 
This seal is kept in the Department of State, and affixed 
to all civil commissions which have been signed by the 
President. There is also in the Department of State 
a Seal of Office, used by the Secretary to authenticate 
copies of records and papers, which copies are received 
as evidence equally with the originals. 

§ 572. 4. l Patent Laws, and Copyrights ; — The 
Patent Office is under the control of the Secretary of 
State. The provision of the Constitution under which 
patents are obtained, has already been discussed. 

§ 573. The laivs for obtaining patents require, 1. That 
those who obtain patents should be either citizens or 
aliens having resided in the country two years. *2. That 
it be obtained by petition to the Secretary, in a form pre- 
scribed. 3. That on presentation of such petition, 
thirty dollars must be paid into the Treasury of the 
United States. 4. There must be a specification or 
description of the art, invention, or discovery for which 
the patent is obtained. This must describe not only the 
form and construction, but the mode of using the 

1 Acts of February 2lst, 1793, and April 17th, 1800. 



224 PRACTICAL OPERATION OF 

machine, &c. It must mention whether it is an im- 
provement, or a new machine. It must be without 
reference to drawing or model, and must be signed by 
the applicant, before two ivitnesses. 5. This must be 
accompanied by an oath, or affirmation, that the appli- 
cant is the true inventor, &c. 6. If not a citizen, the 
applicant must make oath that the same has not, to his 
knowledge and belief, been used in this or any foreign 
country, and that he has resided in this country two 
years. 7. When the patent is for a machine, a perspec- 
tive drawing must accompany the specification; and 
when it is complicated, there must be sections of the 
interior, and if required, a model. If it be for a com- 
position of matter, sufficient must be deposited for ex- 
periment. 8. When there are two applicants for the 
same invention, the law provides for the appointment of 
three arbitrators, one by each party, and one by the 
Secretary of State. 

§ 574. When patents are violated, the trespasser must 
pay to the patentee three times the actual damage proved 
to have been sustained. 

§ 575. An inventor may assign his right before the 
patent has issued, and the assignee may take out a 
patent, or he may assign the patent after it is obtained. 
§ 576. Copyrights are secured to the authors of 
books, maps, charts, and musical composition, by simply 
depositing in the Clerk's Office of the District Court of 
the United States for the district in which the author or 
proprietor lives, a copy of the title of such work, which 
the Clerk records. He must also deposite, in said 
Clerk's office, a copy of the work, within six months 
after its publication. 

§ 577. The time for which copyrights are taken out 
is twenty-eight years, and at the expiration of that time, 
the author, or his widow, or children, may renew the 
right for fourteen years longer, upon condition of record- 

1 Act of February 3d, 1831. 



THE NATIONAL CONSTITUTION. 225 

ing the title a second time, six months previous to the 
expiration of the former term, and causing the title to be 
published in one or more newspapers for the space of 
four weeks. 

§ 578. The author must likewise give notice, by 
advertisement in or on the work, that it is entered ac- 
cording to act of Congress. 

§ 579. In the case of books, the penalty infringing a 
copyright is the forfeiture of every volume so printed 
to the author, and the forfeiture for every sheet printed, 
or printing, of the sum of fifty cents, one-half to the 
author, and one-half to the United States ; and in ad- 
dition, to pay the author all the damages, which he may 
prove or recover, on a special action upon the case. 

§ 580. We have now enumerated the several duties 
which devolve upon the Department of State, and the 
mode in w r hich they are performed. - These duties are 
performed by the Secretary, assisted by clerks, messen- 
gers, watchmen, &c. 

For the officers in the State Department, see Table. 

2. OF THE TREASURY DEPARTMENT. 

§ 581. The object of this department is to manage 
the moneyed concerns of the government. It was created 
by the act of September, 1789. The general duties of 
the Secretary of the Treasury are to prepare and digest 
plans for the improvement and management of the public 
revenue, and for the support of the public credit. To 
execute such services relative to the sale of lands as 
may be required of him : to make reports, and give 
information to either branch of the legislature, in person 
or writing, respecting all matters referred to him by the 
Senate or House of Representatives, or which shall 
pertain to his office. 

§ 582. To perform the details of these duties, they 
have been distributed among eleven sub-departments, 
viz. The 1st comptroller ; the 2d comptroller ; the 1st, 



226 PRACTICAL OPERATION OF 

2d, 3d, 4th, and 5th auditors ; the treasurer ; register ; 
solicitor; and land offices. At the head of each of 
these sub-divisions is a separate officer, charged with 
specific duties, and who has under him a number of 
inferior officers. 

' § 583. 1. The Secretary of the Treasury himself 
prepares the annual report .to be laid before Congress 
of the state of the National Finances ; prepares plans 
for the improvement of the revenue ; — reports in answer 
to the calls of Congress, and gives a general superintend- 
ence to all the branches of the Department. 

§ 584. 2. The first comptroller 1 examines all accounts 
settled by the first and third auditors, and certifies the 
balance thereon to the register ; countersigns warrants 
drawn by the Secretary of the Treasury, if authorized 
by law ; reports to the Secretary the official forms to be 
used in the different offices. He superintends the 
preservation of the public accounts, subject to his re- 
vision, and provides for the regular payment of all 
money which may be collected. 

§ 585. 3. The second comptroller is independent of 
the first. It is the duty of this officer to revise and 
certify the accounts stated in the offices of the second, 
third, and fourth auditors ; in his office is kept a record of 
the accounts settled^ showing the balances due to and 
from the United States ; a record of all the requisitions 
for money drawn by the Secretaries of the War and 
Navy Departments ; on its files are placed all contracts 
involving the payment of money within these depart- 
ments. It is the duty of this comptroller to keep an 
account with each specific appropriation, and to make 
such statements of the disbursements as may be required 
by law. 

The ^decisions of the comptrollers upon all matters of 
account submitted to them, is final. 

* Force's National Calendar. * Act of May, 1792. \ 



, 



THE NATIONAL CONSTITUTION. 227 

In the mode of disbursing money from the Treasury, 
there is a system of checks provided, which gives per- 
fect security to the national funds. Money, which has 
been appropriated, may by the President and Secretaries 
be advanced to the public agents, but those agents must 
render their accounts to the comptrollers, and be by them 
admitted before the payment will be legal. Accounts 
in general must first be audited, and then be certified by 
the comptroller. 

§ 586. 4. First Auditor. This officer receives all 
accounts accruing in the Treasury Department, and in 
relation to the revenue and civil list ; and after examin- 
ation, certifies the balance, and transmits the accounts 
and vouchers to the first comptroller for his decision. 

§ 587. Second Auditor. This officer receives and 
settles, 1st. All accounts relative to the pay, subsistence, 
and forage of the army and officers, with the clothing of 
servants, &c. &c. 2d. The accounts pertaining to the 
clothing and purchasing departments. 3. All accounts 
for the contingent disbursements of the army, for which 
no specific appropriations are made by Congress. 
4. Accounts relative to the hospital stores, drugs, medi- 
cines, &c, and the claims of private physicians for ser- 
vices rendered officers and soldiers. 5. Accounts 
relating to the recruiting department. 6. Accounts 
relating to the ordnance department, [arsenals, the 
armament of new fortifications, and the arming of the 
militia. 7. Accounts relating to the national armories. 
8. Accounts appertaining to disbursements in the Indian 
department, such as pay of agents, presents, annuities, 
contingencies, &c. 

§ 588. 6. Third Auditor. The duty of this officer 
extends to the auditing of all accounts for the quarter- 
master's department, for money, and property ; the same 
as to accounts for subsistence, and for fortifications ; for 
the Military Academy, for roads, surveys, and other 
internal improvements ; for revolutionary invalids, and 



228 PRACTICAL OPERATION OF 

half-pay pensions ; pensions to widows and orphans, 
outstanding claims, and all unsettled accounts of the 
war department to July, 1815. 

§ 589. 7. Fourth Auditor. This officer receives all 
accounts accruing in the navy department, or in relation 
to it. He examines the accounts, certifies the balances, 
and transmits the accounts, with vouchers, and certifi- 
cates, to the second comptroller, for his decision upon 
them. 

§ 590. 8. Fifth Auditor. He receives all accounts 
in relation to the Department of State, the general post- 
office, and the Indian trade ; examines them, certifies 
the balances, and transmits the accounts, with vouchers 
and certificates, to the second comptroller, for his 
decision upon them : he also has charge of superintend- 
ing the buildings and repairing the light-houses, light 
vessels, beacons, buoys and piers, and the adjustment 
of the expenditure of the light-house establishment. 

§ 591. 9. The Treasurer of the United States re- 
ceives and keeps the money of the United States, and 
disburses the same upon warrants drawn by the Secre- 
tary, countersigned by the proper comptroller and auditor, 
and recorded by the register. 

§ 592. 10. The Register of the Treasury keeps all 
accounts of the receipts and expenditures of the public 
money, and of all debts due to or from the United 
States. He receives from the comptroller the accounts 
which have been finally adjusted, and preserves them. 
He records all warrants for the receipt and payment of 
money at the Treasury ; certifies the same, and trans- 
mits to the Secretary of the Treasury copies of the 
certificates of balances adjusted. It is also his duty to 
prepare statistical accounts of the commerce and navi- 
gation of the United States. 

§ 593. 11. The office of Solicitor of the Treasury 
was created by the act of May, 1830. He superintends 
all the civil suits commenced in the name of the United 



THE NATIONAL CONSTITUTION. 229 

States until they are carried into the Supreme Court of 
the United States, when they come under the super* 
intendence of the Attorney-general ; he instructs the 
district attorneys, marshals, and clerks, in all matters 
and proceedings appertaining to these suits, and receives 
from them after each term of court, reports of their situ- 
ation and progress ; he receives from collectors reports 
of custom-house bonds put in suit, &c. ; he establishes, 
with the approbation of the secretary, rules and regu- 
lations for the observance of collectors, marshals, dis- 
trict attorneys, &c. This officer has charge also of the 
lands, which shall be assigned, set-off, or conveyed to 
the United States in payment of debts ; he has power 
also to sell and dispose of such lands, and also of those 
vested in them by mortgage. 

GENERAL LAND OFFICE. 

§ 594. Grants of lands were made prior to 1812, by 
means of Patents from the Department of State. By 
the Act of April, 1812, there was erected a new office 
in the Department of the Treasury, called the General 
Land Office. The officer at the head of this is called 
the Commissioner of the Land Office. His duty is to 
superintend and perform all such acts and things, touch- 
ing the public lands, as were formerly performed by the 
Department of State, by the Secretary and Register of 
the Treasury, or which shall hereafter be assigned to 
said office. He shall keep a seal of office ; and copies of 
records, books, and papers under the seal of said office, 
shall be evidence in all cases in which the originals 
would be evidence. He shall, when required, make 
plots of any land surveyed under the authority of the 
United States, and give other information in relation to 
the public lands and the business of his office. All re- 
turns relative to the public lands shall be made to the 
commissioner, who shall audit and settle all accounts 
relative to the public lands ; and it is his duty, upon 
U 



230 PRACTICAL OPERATION OF 

the settlement of the accounts, to certify the balances, 
and transmit them, with vouchers and certificates, to the 
Comptroller of the Treasury, for his examination and 
decision. 

§ 595. Lands granted for military services shall be | 

granted by warrants from the Secretary at War, re- 
corded in the Land Office, and for which Patents shall 
be afterward issued. All Patents issued from the Land 
Office are in the name of the United States, signed by 
the President, countersigned by the Commissioner, and 
under the seal of his office. Neither the Commissioner, 
nor any one in his office, are permitted to purchase any 
public lands for himself, or for any other person, or in 
trust for any one. 

SURVEY AND DISPOSITION OF THE PUBLIC LANDS. 

§ 596. Under the general head of the Land Office 
comes the mode of surveying, selling, and otherwise 
disposing of the public domain. We have already seen, 
that at the adoption of the Constitution, much difficulty 
arose in respect to the public lands, — that they were 
finally ceded to the general government, — that the gov- 
ernment established a separate department for their bet- 
ter regulation, — and that a system has been enacted by 
Congress for their disposition. What that system is we 
shall now inquire. It relates, 1st, To the mode of sur- 
vey ; and 2d, To the disposition of the lands, whether by 
sale or gift ; 3d, To the title of the occupants. 

§ 597. 1. As to the mode of survey. Previous to the 
year 1796, large tracts of land had been purchased by 
individuals of the government, grants had been made to 
Virginia, and other states, for military bounty lands, and 
these lands had been surveyed by the respective parties 
claiming title. The surveys were of course different, 
having no relation to each other, and some of them, 
particularly those made under the authority of Virginia, 
extremely defective. In disposing of military lands, for 



THE NATIONAL CONSTITUTION. 231 

example, no particular tract was sold, but a warrant was 
issued, and that warrant located by the holder on any 
ground not otherwise disposed of. These warrants 
likewise had different priorities, both as to date and lo- 
cation, which frequently had to be determined by litiga- 
tion. The locations also were often made to lap upon 
one another. Hence, it became obvious, that some sys- 
tem of survey and sale, having for its basis safety, reg- 
ularity, and permanency, must be adopted. By the acts 
of May, 1796, April, 1816, March, 1804, February, 
1805, and of March, 1817, a complete system of sur- 
veying, upon scientific principles, was established under 
the authority of Congress. 

§ 598. The surveying of the public lands is divided 
into six divisions, each of which is controlled by an offi- 
cer, called a Surveyor-general, who has. under him a 
sufficient number of deputies and clerks, and is charged 
with surveying all the public lands to which the Indian 
title is extinguished within his district. 

§ 599. The surveying districts, as now established, are, 

1. The Surveyor-general north-west of the Ohio, for the 
states of Ohio, Indiana, and the territory of Michigan. 

2. The Surveyor of public lands south of Tennessee, 
for the state of Mississippi. 3. Surveyor for the states 
of Illinois and Missouri, and territory of Arkansas. 
4. Surveyor of public lands in Alabama. 5. Surveyor- 
general for Louisiana. 6. Surveyor of public lands in 
Florida. 

§ 600. The duty of the Surveyor-general north-west 
of the Ohio, as prescribed by the act of May, 1796, 
was the basis of those for all the others. By that act, 
the surveyor-general was directed to engage a sufficient 
number of skilful surveyors as deputies, and to survey 
and mark the unascertained outlines of lands lying 
within his district, to which the Indian title was extin- 
guished, and to divide it in the manner hereafter de- 
scribed ; it was also his duty to frame regulations for 



232 PRACTICAL OPERATION OF 

the government of his deputies, administer the necessary 
oaths, and remove them for negligence or misconduct. , 
§ 601. The mode in which he was directed to survey 
the land was this : — The whole country to be surveyed 
is first divided by parallel north and south lines, or me- 
ridians, exactly six miles apart, and these again are 
crossed by other lines precisely at right angles, or east 
and west, to the first, and also six miles apart ; so that 
the whole country is divided into squares of six miles 
on a side, or thirty-six square miles : these squares 
are called townships, and are distinguished by num- 
bers. These again are divided by lines parallel to the 
former, and exactly one mile apart, into other squares, 
containing one square mile. These last squares are 
called sections, and as there are exactly thirty-six square 
miles in a township, so there are precisely as many 
sections, numbered from one to thirty-six. The corners 
of the sections are all marked upon some tree near, and 
the number of the section is also marked. Each column 
of townships, or spaces between two of the north and 
south parallels, is called a Range, east or west of certain 
meridians. To describe a section accurately then, you 
say thus, — Section number 5, in Township number 4, in 
Range 3d, west of the Meridian, drawn through the 
mouth of the Great Miami river. Such a description 
fixes the situation of the ground with absolute certainty. 
The purchaser has only first to go to the 3d column of 
townships west of the given meridian, — which he sees 
by the map must be in the eastern part of Indiana, — 
then to look for township No. 4, and lastly for section 
5 of that township, which will be marked by corner- 
posts, and limited by lines blazed on the trees. Since 
the first law directing the mode of survey, others have 
been passed, authorizing their survey into half and 
quarter sections, which has been done ; and of late, they 
have been subdivided into eighths. Each section, or 
square mile, contains exactly 640 acres ; of course, a 



THE NATIONAL CONSTITUTION. 233 

half section has 320, — a quarter 160, — and an eighth 
80. A township, being 36 sections, contains precisely 
23040 acres. To make these surveys accurately, it 
was first necessary to establish the meridian lines, or 
lines running due north and south ; and this, to be done 
well, must be done astronomically. At the accession 
of Mr. Jefferson to the presidency, he, for this pur- 
pose, and for that of establishing the geography of the 
country, appointed a gentleman of science and abilities 
to the office of Surveyor-general, under whose direction, 
and by whose astronomical observations, the principal 
meridians of Ohio and Indiana were established. The 
same system of survey has been continued ever since, 
and no country can exhibit greater accuracy in its inter- 
nal geography, or greater security to its land titles, than 
that portion of the United States which has grown out 
of the public domain. 

§ 602. 2d. The next subject in relation to United 
States lands is their disposition, whether by sale or 
grant. 

1. Disposition by gift. The United States have been 
in the highest degree liberal, both to states and individ- 
uals, for the purposes either of charity or general utility. 
The principle and the mode of making these grants may 
be known for the whole, by examining those for the state 
of Ohio, the oldest of the states carved out of the pub- 
lic domain. 

§ 603. 1. In the Ohio Company's Purchase, there 
were reserved two townships for the use of a university. 

2. An entire township in Symmes' purchase was 
granted for the purpose of an academy, or university. 

3. In the Ohio Company's and Symmes' Purchase, an 
entire section in each township is granted for the pur- 
poses of Religion. 

1 The person appointed was the late Col. Jared Mansfield, 
who filled the office of Surveyor-general from 1802 till 1812. 
U 2 



234 PRACTICAL OPERATION OF 

4. One section in each township, or one thirty-sixth 
part of the whole public land in that state, is reserved 
for schools. 

5. Three per cent, of the funds arising from the sale 
of public lands is reserved for roads. 

6. Congress have lately made large grants to aid in 
the construction of the Ohio Canals, — about 500,000 
acres. 

§ 604. The total amount of grants made to the state 
of Ohio for school, ministerial, canal, and other pur- 
poses, does not fall much short of 2,000,000 of acres, 
or one-third part of the entire surface of the state. 

The grants in the other states have scarcely been less. 
Those for school and academic purposes have been the 
same ; and nearly all of them have received large grants 
for the purposes of public improvement. 

§ 605. 2. Disposition by Sale. As fast as the lands 
are surveyed in the manner described, and as in the 
discretion of the President, it may seem necessary, they 
are offered at public sale, at the several land offices. 
These offices are created by act of Congress, in every 
large district of surveyed lands, for the purpose of con- 
venience to the purchaser. Attached to each is a Regis- 
ter and a Receiver ; two officers, whose duty it is, as 
their name imports, to register the sale of lands and re- 
ceive the moneys. The sales are made — 1st, by offer- 
ing a large district of land in separate tracts, of sec- 
tions, half sections, quarters, and eighths, at public sale. 
Notice of this, as to time, place, and terms, is given by 
a general proclamation from the President. It is then 
sold to the highest bidder. All the land which remains 
unsold, after being twice offered, may be entered and 
sold at private sale, for the minimum price. Formerly, 
the price was two dollars per acre, and a credit of four 
years given. This was found, however, to be productive 
of great inconvenience, and the lands, after one payment, 
were often forfeited. Now the price has been reduced to 



THE NATIONAL CONSTITUTION. 235 

one and a quarter dollars per acre, and cash payments. 
There are now forty-three land offices in the United 
States, and about 2,000,000 of acres sold annually, and 
more than that number of dollars received into the 
Treasury on account of lands sold. 

§ 606. Title of Occupants. The title of the pur- 
chasers of public lands is the best that can be found. 
They come in as assignees of the United States, and re- 
ceive a patent from the President. From the accuracy 
with which surveys are made, and the unsettled state of 
the country in which they are made, very little chance 
of a conflicting claim occurs ; but if, by any inadver- 
tence, such claim should arise and prevail, the pur- 
chaser is entitled to remuneration from the United 
States, and is allowed it to the extent of his claim. 

§ 607. Some other and temporary departments of 
business come under the general supervision of the 
Treasury chief, — such as the settlement of insolvent 
cases, under the insolvent laws of the United States, 
and awards under indemnifying treaties with foreign na- 
tions. They do not constitute, however, any part of 
the regular business of the department, and therefore 
are omitted here. 

WAR DEPARTMENT. 

§ 608. This department was established by act of 
Congress, August, 17S9. 

The Secretary of War has a general superintendence 
over all military officers, and likewise of the Indian 
Department. His department is divided into the follow- 
ing subdivisions, viz : — 

I. War Office. 2. Requisition Bureau. 3. Pension 
Bureau. 4. Indian Bureau. 5. Bounty Land Office. 
6. Office of the General Staff. 7. Adjutant-general's 
Office. 8. Engineers' Department. 9. Topographi- 
cal Bureau. 10. Ordnance Department. 11. Quarter- 
master's Department. 12. Purchasing Department. 



236 PRACTICAL OPERATION OF 

13. Pay Department. 14. Subsistence Department. 
15. Medical Department. 

§ 609. 1. War Office. This is the office immedi- 
ately directed by the Secretary, in which the corre- 
spondence of the department is kept and conducted, 
and every thing of a general superintending nature per- 
formed. The secretary has three clerks and two mes- 
sengers. 

§ 610. 2. The Requisition Bureau. 1 In this office the 
requisitions of the War Department on the Treasury 
are made out, and the salaries and contingencies of the 
department paid. It is conducted by a superintendent 
and clerk. - 

§ 611. 3. The Pension Bureau. In this office all 
claims for pensions are settled, except such as arise un- 
der the Navy Pension Law of 1799, — that giving pen- 
sions to widows of militia and volunteers, and the act of 
May 15th, 1828, in relation to officers who served to 
the end of the revolutionary war. The number of pen- 
sioners is about 15,000, and the amount paid them an- 
nually about $1,200,000. The number, however, is 
continually decreasing, and in a few years, probably, a 
much smaller amount will be paid in pensions. In this 
office is a principal and four clerks. 

§ 612. 4. Indian Bureau. To this office are refer- 
red all matters in respect to the Indian relations. The 
duties of this office are the correspondence in relation 
to Indian Affairs,^ — the management of the funds for the 
civilization of the Indians,— estimates for treaties, in- 
structions for the application of the money, and the 
mode of holding treaties. Accounts for the expendi- 
tures are passed through this office. 

§ 613. The relations of the government with the In- 
dian nations have become both complicated and hazard- 
ous. From the first formation of the government, it 

1 Force's National Calendar. 



THE NATIONAL CONSTITUTION. 237 

has treated with them as with independent nations ; 
their right to the soil has been acknowledged, and pay- 
ment made to them as purchase money, annuities 
granted, and various collateral advantages stipulated in 
their favour. At the same time that this was done, 
many tribes of them have been located entirely within 
the states, and over whose soil the jurisdiction of the 
states has extended. Hence, the hazard of a conflict 
between the independent rights of the Indians and the 
jurisdiction of the states is constantly recurring. Of 
the constitutional points upon this subject, we have 
spoken in another place. 

§ 614. The practical action of the government with 
respect to the Indians may be stated under two heads : 

1. Regulation of trade and intercourse with them. 

2. Civilization of them. 

§ 615. Of the regulation of trade and intercourse 
with them. The first act of intercourse with them is 
the holding treaties with them, and settling boundary 
lines. The United States have always held treaties 
with them, and acknowledged them as, in many respects, 
independent nations, and have settled the respective 
boundaries of the United States and them. It is there- 
fore too late to question this point of intercourse. By 
section 2d, of the act of March, 1802, all persons who 
shall go within the Indian boundary to hunt, or other- 
wise destroy game, or shall drive or convey any stock of 
cattle to range on any lands secured by treaty to the 
Indian tribes, are subject to fine and imprisonment. So 
likewise, if any one go into the Indian country, and 
there commit robbery, or other crime, which would be 
punishable within the United States, he is punishable 
also with fine and imprisonment : and so, if one com- 
mit murder on an Indian, the offender shall suffer death. 
No one is permitted to reside in the Indian country, or 
purchase any thing of the Indians, without a license. 

§616. No person is allowed to purchase, lease, or 



238 PRACTICAL OPERATION OF 

take any other conveyance from an Indian, of any land 
within the bounds of the United States, except it be in- 
cluded by some treaty made by the United States with 
the Indians : and it is a misdemeanor for any one not 
employed under the authority of the United States, di- 
rectly or indirectly to treat with any nation or tribe of 
Indians, for the title or purchase of any land held by 
them. 

§ 617. The Superior courts in each of said territo- 
rial limits, and the Circuit and other courts of the United 
States, of similar jurisdiction in criminal causes, are in- 
vested with full power and authority to hear and adju- 
dicate all such crimes and offences. 

§ 618. By the same act, it is lawful for the military 
force of the United States to apprehend any person who 
may be found in the Indian country, over and beyond 
the boundary line ; that is, intruders. 

§ 619. *For the purpose of carrying on a proper 
trade with the Indians, the superintendents of Indian 
Affairs, and the agents, under the direction of the Presi- 
dent, are authorized to grant licenses to trade with the 
Indians. These licenses are granted to citizens, and to 
none others. Those who take licenses are obliged to 
enter into penal bonds, in sums proportioned to their 
capital, conditioned for the due observance of the laws 
regulating trade and intercourse among the Indians. 

§ 620. All purchases for and on account of Indians, 
for annuities, presents, &c. &e. are made by Indian 
agents and governors of territories, acting as superintend- 
ents. In all trials in which an Indian and a white man 
are parties, the burden of proof shall rest upon the white 
man, in every case in which an Indian shall make out a 
presumption of title. For the purpose of superintending 
the Indian intercourse, an officer is appointed by the 
President, called a Superintendent of Indian Affairs. 

> Act of May 6, 1822. 



THE NATIONAL CONSTITUTION. 239 

§ 621. l Licenses to trade with the Indians are not 
granted to any but citizens. Foreigners, who go into 
any of the Indian territories within the limits of the 
United States, are subject to fine and imprisonment. 

§ 622. 2. Civilization of the Indians. For this ob- 
ject, the United States have from time to time used 
various means. To promote civilization among the 
friendly Indians, and to secure the continuance of their 
friendship, it was enacted, that the President of the 
United States might furnish them with domestic animals, 
implements of husbandry, goods, and money at his dis- 
cretion ; and might also appoint such persons, from time 
to time, to reside among them, as he may think fit. 

§ 623. The President 2 was also authorized to take 
such measures as he may think expedient, to prevent the 
vending or distributing spirituous liquors among the 
Indians. 

§ 624. In addition to these enactments, Congress, by 
the act of March 3d, 1819, authorized the President to 
employ persons of good moral character to instruct them 
in the mode of agriculture suitable to their condition, and 
for teaching them reading, writing, and arithmetic, to be 
governed by such rules and regulations as the President 
may prescribe. 

§ 625. The United States have expended much 
money and employed many agents upon the objects 
contemplated by these provisions, but little progress has 
ever been directly made in the civilization of the Indians. 
The frontier tribes have always retained their original 
barbarism. The Cherokees, Choctaws, &c. who have 
continued within the bosom of the white settlements, 
have made some little progress in the arts of civilized 
life. 

§ 626. 5. Bounty Land Office. 3 This is an office in 



1 Act of 1816. 2 Act of March, 1802, Sect. 21. 3 Force' 
National Calendar. 



240 PRACTICAL OPERATION OF 

which claims for military bounty lands, originating in 
the Revolutionary and late war, are examined, and from 
which military bounty land- warrants issue. 

§ 627. 6. Office of the General Staff. This is the 
office of the Commander-in-Chief. His duty is to com- 
mand the army ; to arrange the military force in the best 
manner ; to superintend the recruiting service ; to order 
courts-martial, and decide in all cases except those in 
which life is concerned, or the commission x>f an officer. 
f § 628. 7. Adjutant-general's Office. In this" office 
are deposited the records which refer to the personnel of 
the army from the earliest period of the government. 
In this office, military appointments and commissions are 
made out and registered ; enlistments recorded ; monthly 
returns of the troops received and preserved. All orders 
from Head Quarters, and all regulations and general 
orders of the War Office, are communicated through the 
Adjutant-general. In this office, the annual returns of 
the militia, arms, accoutrements, &c. are deposited, as 
likewise the appointments and commissions of the officers 
of the militia of the District of Columbia are registered 
and distributed. 

§ 629. 8. Engineer Department, The chief of the 
Engineer Department is stationed at the seat of govern- 
ment, and directs and regulates the duties of the corps 
of engineers, and of such topographical engineers as may 
be attached to it ; he is also inspector of the Military 
Academy, and charged with its correspondence. 1 

§ 630. 9. Topographical Bureau. This Bureau has 
charge of all topographical operations, and surveys for 
military purposes and for internal improvement, and of the 
maps, drawings, and documents in relation to those duties. 

§631. 10. Ordnance Department. The senior officer 
of Ordnance is stationed at the seat of government, and 
charged with the general superintendence of its duties. 

1 Force's National Calendar. 






THE NATIONAL CONSTITUTION. 241 

§632. 11. Quartermaster's Department. The object 
of this department is to insure the supplies and facilitate 
the movements of the army. The Quartermaster-general 
is stationed at Washington, and has, under the direction 
of the Secretary at War, the exclusive control of all the 
quartermasters, and assistant quartermasters, and of 
all the officers and agents acting for the department. It 
is the duty of the Quartermaster-general and his agents 
to provide quarters and transportation for the troops, and 
transportation for military stores, camp equipage, provi- 
sions, &c. &c. ; provide for opening and repairing roads, 
bridges, &c. He purchases all forage, fuel, stationary, 
&c. ; provides all horses, wagons, boats, and materials 
for buildingbarracks, hospitals, stables, and bridges. Offi- 
cers of the Quartermaster's department make all con- 
tracts for the supplies of the army, and have the right to 
make payment for all supplies, which by regulation they 
have the right to contract for. No officer is allowed to 
be concerned, directly or indirectly, for himself or others, 
in any contract with any department of the government, 
nor in the purchase of any claim on government. When- 
ever private grounds, buildings, or property are occupied 
by the troops of the United States, the Quartermaster 
must make reasonable compensation to the proprietor. 
Every officer in the Quartermaster's department gives 
bonds to the United States, conditioned for the faithful 
performance of his duty. 

§633. 12. Purchasing Department. The Commissary- 
general of Purchases purchases 1 on the orders and esti- 
mate of the war department, all clothing, camp equipage, 
saddles, and all articles required for the public service 
of the army of the United States, except such as are 
ordered to be purchased by the Ordnance, Quarter- 
master's, Subsistence, and Medical Departments. 

§ 634. 13. Way Department. The Paymaster- 

1 Force's National Calendar. 
X 



242 PRACTICAL OPERATION OF 

general is stationed at the seat of Government, and is 
charged with the military responsibilities of this depart- 
ment in all its details. The subordinate officers of the 
pay department are subject only to the orders of the 
Paymaster-general and Secretary at War. The troops 
are paid every two months, or a3 near it as is possible. 

§ 635. 14. Subsistence Department. The Commis- 
sary-general of Subsistence makes estimates of expendi- 
tures for his department, purchases subsistence for the 
army, makes payment to contractors, arranges his 
assistants, &c. 

§ 636. 1 5. The Surgeon-general — is stationed at Wash- 
ington, and is the director and accounting officer of the 
JSIedical Department. He issues all orders and instruc- 
tions relative to the professional duties of the medical 
staff, and receives such reports from them as is neces- 
sary to the proper performance of their duties. He 
receives quarterly reports of the sick from each officer, 
with such remarks as may explain the nature of the dis-: 
eases of the troops and the practice adopted. He receives 
from every surgeon and assistant surgeon having charge 
of public property, semi-annual returns of the same, and 
also annual requisitions for the supplies required for each 
hospital. It is his duty to make all such returns to the 
Secretary at War as may be necessary to explain all the 
concerns of the department under his charge, with such 
remarks relative to the improvements in practice and 
police, clothing, &c. of the army, as may seem to be 
required for the preservation of health, and the good of 
the public service. 

NAVY DEPARTMENT. 

-§ 637. The Navy Department was not created until 
some time after the departments of State, War, and Trea- 
sury were in efficient operation. The office of Secretary 
of the Navy was erected by the act of the 30th of April, 
1798. He has a general superintendence of the naval es- 
tablishment, and issues all orders to the navy. He is by 






THE NATIONAL CONSTITUTION. 243 

usage a member of the cabinet, and holds his office at 
the will of the President. The secretary is assisted 
by eight clerks and two messengers. 

§ 638. By the act of February 7th, 1815, a Board of 
Navy Commissioners was established. The board con- 
sists of three post-captains, who have power to adopt 
such rules and regulations for the government of their 
meetings as they may think expedient ; and the board, 
so constituted, is attached to the office of the Secretary 
of the Navy, and under his superintendence discharges 
all the ministerial duties of said office relative to the 
procurement of naval stores and materials, and the con- 
struction, armament, equipment and employment of ves- 
sels of war, as well as all other matters connected with 
the naval establishment of the United States. And the 
board appoint their own secretary, who keeps a record 
of their proceedings, subject at all times to the inspection 
of the President of the United States and the Secretary 
of the Navy. 

§ 639. Six clerks, a draughtsman, messenger, and 
superintendent of building are employed by the Board 
of Navy Commissioners. In addition to the above 
officers, attached to the department and to the Navy 
officers there are twelve Navy Agents, seven- Naval 
Storekeepers, and eight Naval Constructors. 

POST-OFFICE DEPARTMENT. 

§ 640. The Post-office Department has been in ope- 
ration since the first organization of the government ; 
but the act which gave it the present form and constitu- 
tion was passed April 30, 1810. By that act the Gen- 
eral Post-office is placed under the direction of a Post- 
master-general. He has two assistants, and such clerks 
as are necessary to perform the business of his office. 
He establishes post-offices, and appoints such post- 
masters, as he may deem expedient, on routes estab- 
lished by law, He gives all persons employed in his 



244 PRACTICAL OPERATION OF 

department instructions upon their duty. He provides 
for the carriage of the mail on all such post-routes as 
are established by law. When he thinks proper, he 
may designate the route, where there are more than 
one, between places designated by law for a post-road. 
He requires the accounts, vouchers, and balances of the 
several postmasters quarterly. He pays all the ex- 
penses arising from the conveyance of the mail, the col- 
lection of the revenue of the department, and other ex- 
penditures ; he prosecutes offences against the depart- 
ment ; he renders a quarterly account of the receipts 
and expenditures to the Secretary of the Treasury ; 
he superintends all the business of the department, and 
in case of death, resignation, or removal, is succeeded 
by the senior assistant till a successor is appointed. 

§ 641. The Postmaster-general, and all in the gen- 
eral post-office, as well as all who have the care, cus- 
tody, or conveyance of the mail, must take an oath to 
perform all the duties required of them, and abstain from 
every thing forbidden by them, in relation to the post- 
offices and post-roads within the United States. 

§ 642. To place the conveyance of the mail entirely 
under the supervision of the postmaster-general, all 
private mails are forbidden, and all persons are prohib- 
ited, directly or indirectly, from conveying letters from 
place to place. 1 

§ 643. The expenditures of the Post-office Depart- 
ment are paid from its receipts in postage. In this re- 
spect this department differs from all the others. Its 
funds do not make up a part of the general revenue of 
the country, nor are its expenses paid from it. Its re- 
ceipts and its expenditures are kept within itself. In 
this manner, as its funds extended, new mail routes 
have been established ; the mail greatly expedited on 
the old ones, and their frequency increased. Indeed, 

1 Act of April 30, X3I0, section 16 



THE NATIONAL CONSTITUTION. 245 

the great increase of postage and post-routes show, 
more than any other, the augmentation of numbers, busi- 
ness, wealth, and intelligence of the people. 

^ 644. The Postmaster-general is assisted by two 
assistants, an examiner, register, solicitor, three book- 
keepers, and sixty-two clerks. 1 

§ 645. The business of the office is divided into 
three divisions ; at the head of the 1st is the First Assist- 
ant ; of the 2d the Second ; of the 3d the Chief Clerk. 

§ 646. 1. Of the First Division. Under this divis- 
ion are included the Book-keeper's Office, Solicitor's 
Office, Pay Office, Examiner's Office, and Register's 
Office. The senior assistant is charged with duties ap- 
pertaining to the Finance Department ; with the super- 
vision of cash disbursements ; with the comptrolling of 
incidental expenses, when audited by the chief clerk ; 
with examining and reporting to the postmaster-general, 
when deficient, the deposites of the weekly, monthly, 
and quarterly proceeds of the depositing post-office. 

§ 647. Book-keeper'' s Office. The principal book- 
keeper 2 is charged with five legers, containing 3000 
post-masters' accounts, the contractor's accounts for the 
same region, as well as the general accounts of the de- 
partment, a journal and abstract of the day-book for 
the same district. 2. The second book-keeper is, in 
like manner, charged with four legers, containing near 
3000 postmasters' accounts, the contractors' accounts for 
the same section, a journal, and a day-book, as before. 
3. The third book-keeper is charged with four legers, 
containing 2500 postmasters' accounts, and other ac- 
counts and books, as before. 

§ 648. Solicitor's Office. The solicitor has the final 
settlement of all accounts, and the collection of all bal- 
ances due, the commencement of suits, and the corre- 

1 Force's National Calender, 137. 2 Idem. 138. 

X2 



246 PRACTICAL OPERATION OF 

spondence with the United Statefe Attorneys and others 
in relation thereto. Also, the statement of postmasters' 
accounts, and the correspondence on questions of differ- 
ence with them. 

§ 649. Pay Office. It is the duty of the pay-clerk to 
examine the accounts of all contractors for the trans- 
portation of the mail ; ascertain the annual and quar- 
terly payments to be made on their contracts ; issue the 
drafts in their favour, on the postmasters belonging to 
their routes ; to keep the pay-books of the pay due, of 
the sums drawn from the post-offices, and of the drafts 
and checks transmitted, and furnish certificates of the 
sums required to the assistants. He is also agent for 
the payment of the officers and others of the depart- 
ment ; he has four assistant clerks. 

§ 650. The Examiner's Office. The chief examiner 
is charged with the opening, auditing, and examining 
of all post-masters' accounts ; notifying and reporting all 
delinquents ; with notifying postmasters of the errors in 
their accounts ; receiving and depositing remittances, 
and returning those not receivable. 

§ 651. The Register's Office. The chief register pre- 
pares all the accounts of the department for the Trea- 
sury, with their proper vouchers, with a general account 
current of the transactions of the department, and su- 
perintends the copying and adjusting the accounts for 
the Treasury. The register is assisted by three assist- 
ants and three clerks. 

Second Division. 

§ 652. This division is under the direction of one of 
the Assistant Postmasters-general. His duties are to 
take charge of the establishment and regulation of post- 
offices ; the appointment, supervision, and instruction of 
postmasters ; the security of remittances by mail ; the 
examination of mail routes, to determine the location of 



THE NATIONAL CONSTITUTION. 247 

new offices ; the reporting of applications and com- 
plaints to the postmaster-general. 

§ 653. Office of Appointments and Instructions. This 
is attached to the second division, and has nine clerks ; 
of these four are corresponding clerks, whose duties 
consist in the examination and endorsement of memo- 
rials, letters, <fce. &c. One clerk, whose duty it is to 
prepare the letters of appointment, discontinuance, 
bonds, &c. &c. One clerk, who writes notices of ap- 
pointments, change, &c. One letter-book clerk, who 
records and despatches the letters from this office ; and 
two other clerks. 

§ 654. Dead Letter Office. This office is under a 
superintendent and four clerks. The superintendent 
examines dead letters containing articles of value ; en- 
ters and numbers them, and transmits them to the own- 
ers : in other cases he numbers them, enters them, and 
files them. He also corresponds on the subject. Let- 
ters that have no enclosures are burnt. 

§ 655. Office of JVLail Depredations. To this office 
is assigned the business of attending to all cases of mail 
losses, and depredations, &c. &c. 

Third Division. 

§ 656. The Chief Clerk is charged with the duties of 
this division. 

Office of Mail Contracts. The business done in this 
branch is always prepared, and submitted to the post- 
master-general for his examination and decision. There 
are four corresponding clerks in this department ; one 
contract clerk ; one route-book clerk ; two letter-book 
clerks ; one fine clerk. 

To the Post-office Department are attached two 
watchmen, and three messengers. 



248 PRACTICAL OPERATION OF 

MINT DEPARTMENT. 

§ 657. The Mint of the United States was estab- 
lished by the act of April 2d, 1792. 

The officers of the Mint are a Director, Chief 
Coiner, Assayer, Engraver, Melter and Refiner, 1 and a 
Treasurer, and as many clerks and workmen as are 
necessary. The duty of the Director is to superintend 
and manage the business, and all the officers and per- 
sons employed in it. The Assayer assays all the metals 
which require it, and delivers them to the chief coiner. 
The Chief Coiner coins them in such quantities as the 
director requires. The Engraver sinks and prepares 
the dies for the coin, with the proper devices and in- 
scriptions. The JWelter and Refiner , take charge of all 
copper, and silver or gold bullion, delivered out by the 
Treasurer after assaying, and reduces the same into 
bars and ingots for the rolling mills, and then delivers 
them to the coiner, or treasurer, as the director deems 
expedient. The Treasurer receives and gives receipts 
for all metals which may be lawfully brought to the 
mint to be coined ; and for ascertaining their quality, he 
delivers from every parcel so received a number of 
grains to the assayer, who assays such of them as re- 
quire it. 

§ 658. Every officer and clerk of the Mint, before he 
enters upon the duties of his office, takes an oath or af- 
firmation, before some judge of the United States, faith- 
fully and diligently to perform the duties thereof. The 
Assayer, Chief Coiner, Melter and Refiner, and Trea- 
surer, give bonds to the Secretary for the faithful and 
diligent performance of their several duties. 

§ 659. Every person is allowed to bring gold and 
silver bullion to the mint to be coined, and it is assayed 
and coined as soon as practicable after it is brought ; 
if it is of the standard of the United States it is 

Act of March 3d, 1795. 



! 



THE NATIONAL CONSTITUTION. 249 

coined free of expense ; but the treasurer is not obliged 
to receive silver in less quantity than two hundred 
ounces, nor gold less than twenty ounces, when less 
than the standard value. When it is of less than the 
standard value, it is coined at the expense of the owner. 

2. OF THE LEGISLATURE. 

§ 660. The operation of the Legislative branch of 
the government consists chiefly in its organization. 
Congress, as we have seen in the 1st Article of the Con- 
stitution, consists of two branches, the House of Rep- 
resentatives and the Senate. The organization of these 
bodies respect, 1st, their officers ; 2d, their committees ; 
and 3d, their rales. 

§ 661. 1st, Of their Officers ; these are, the presiding 
officer (in the House, the Speaker, and in the Senate, 
the Vice-President), — the Clerk, — Sergeant-at-Arms, 
and Doorkeeper. When the House meet at the seat 
of government, they usually appoint the oldest member 
present Chairman ; after that, they proceed to the elec- 
tion of a Speaker, a majority of all the votes present 
being necessary to a choice ; after this they elect a 
Clerk, — Sergeant-at-Arms, and Doorkeeper. When 
these officers are elected, and the members sworn, which 
they are by the Clerk, the House is said to be organized 
and ready to do business. In the Senate, the Vice- 
President takes the chair, or if not present, a president 
pro tem, is chosen : then the Clerk and other officers are 
chosen, as in the House. 

§ 662. The power and duties of the speaker are 
to preside and keep order in the House ; — to appoint 
committees 1 unless otherwise specially directed by the 
House ; — to sign all acts, addresses, and joint resolu- 
tions of, and all writs warrants, and subpoenas, issued 

1 Jefferson's Manual, 157. 



250 PRACTICAL OPERATION OF 

by order of, the House, shall be under his hand and seal, 
attested by the Clerk ; he has power to clear the galle- 
ries when there is disturbance ; he puts all questions to 
the House, and in case of ballot, is entitled to vote ; in 
other cases he is not, unless the House is equally di- 
vided, or his vote given in the minority would make it 
equal. 

§ 663. The duty of the Clerk 1 to make, print, and de- 
liver to each member, at the commencement of every 
session of Congress, a list of the reports which it is the 
duty of any officer to make to Congress, referring to the 
page of the journals in which it is contained; it is his 
duty to keep the journals of the House, and at the end 
of each session to send a printed copy thereof to the 
Executive, and to each branch of the Legislature of 
every state ; he must note all questions of order, and 
place them at the end of the journal of each session. 

§ 664. The duty of the Sergeant-at-Arms 2 is to at- 
tend the House during its session, to execute its com- 
mands, and all such process as shall be directed to him 
by the Speaker. 

§ 665. The duty of Doorkeeper is explained by his 
title. 

% § 666. The chief business of legislative bodies is 
done by their committees, — to whom all matters of busi- 
ness, requiring investigation and consideration, are first 
referred ; and by whom a report is made upon the sub- 
ject, which report is the topic of consideration with the 
House. Committees in the House are appointed by the 
Speaker, in the Senate by ballot. In the House they 
consist of seven members each ; in the Senate of five. 

$ 667. The committees are formed by arranging all 
the chief subjects of importance into classes, with an 
appropriate title, and to each appointing a separate com- 

1 Jefferson's Manual, 173. 2 Idem. 165. 



THE NATIONAL CONSTITUTION. 251 

mittee. These subjects and classes are enumerated in 
the rules and orders of the Houses, and, with little varia- 
tion, are the same in both. By the 7th Sect, of the 1st 
Art. of the Constitution, it is provided, that all bills for 
raising revenue shall originate in the House of Repre- 
sentatives ; hence the House have a committee which 
the Senate have not, styled The Committee of Ways and 
Means, This committee is one of the most important 
parts of the machinery of legislation, and of the govern- 
ment itself; for in it are investigated all the moneyed af- 
fairs of the nation, and by it are digested and reported 
the various plans of revenue and finance for the sup- 
port and credit of the government. 

§ 668. The principal committees in either House are, 
The committees on Foreign Relations, on Commerce, 
on the Judiciary, on Military Affairs, &c. 

§ 669. These committees, with several others, not 
enumerated, are called standing committees: besides 
these there are select committees, appointed for specific 
objects, and only for the particular occasion ; these are 
appointed, either from the great importance of the topic 
under consideration, or the particular desire of mem- 
bers having them in charge. Besides these, the whole 
House, at times, resolves itself into a committee, called 
the committee of the whole. The object of this is to 
obtain greater freedom of debate : when in committee 
of the whole, the speaker does not preside, but a chair- 
man appointed for the occasion ; nor do the rules of 
the House govern, but simply order is preserved, as in 
common deliberative assemblies. When the committee 
of the whole have finished their discussions, they rise, 
and like other committees, report to the House, the 
Speaker resumes the chair, and the members vote in 
the House upon the acceptance or rejection of the re- 
port. In this manner important subjects are more 
freely discussed, and more deliberately decided upon 
than if they passed merely through the House. 



252 PRACTICAL OPERATION OF 

§ 670. The regular and constant business of the 
House is concocted first in the standing committees ; 
for example, the appropriation bills for support of gov- 
ernment are drawn up in them ; bills for claims, for the 
sale and grant of lands, &c. 

§ 671. The order of business is as follows; after 
Congress is organized, the President's Message is re- 
ceived and read, with the accompanying documents ; 
then such part of it as relates to our intercourse with 
foreign nations, is referred to the committee on foreign 
affairs : so much as relates to the army, military acad- 
emy, &c. &c. to the committee on military affairs, and 
so on of each subject : these committees examine the 
recommendations made by the President and the re- 
spective departments, and report such bills as they think 
necessary and proper : on these Congress decide by ac- 
cepting or rejecting them. 

§ 672. If any member wish to obtain the action of 
the House upon a particular subject, he must do it in 
one of the following modes : — 1st, by resolution ; thus, 
if it is desired to obtain the opinion of the House upon 
a particular point, a member introduces a resolution, 
" Resolved so and so ;" upon this resolution the House 
act, and its sentiment upon that subject is immediately 
obtained ; again, if it is desired to obtain the report of 
a committee, or a bill upon a given subject, a resolution 
is introduced, directing the committee to report, or oth- 
erwise, and the House at once pass it or not, at its dis- 
cretion ; calls for information upon the departments are 
likewise made in this manner. 2d. Another mode is 
that of obtaining leave to bring in a bill ; when a sub- 
ject does not regularly come before the committee, or 
the instant action of the House is required, this is some- 
times adopted. Regular bills are brought in by the 
committees, and for a member to bring in a bill, the 
House must grant leave. 

§ 673. The order of daily business is, 1st. As soon 



THE NATIONAL CONSTITUTION. 



253 



as the journal of the preceding day is read, 1 the Speaker 
calls for petitions from the members of each state and 
territory ; 2 when these petitions are presented and dis- 
posed of, reports from the standing and select commit- 
tees are called for and disposed of; to these subjects, 
and to that of resolutions, only one hour a day is allowed* 
After this is done, and the Speaker has disposed of com- 
munications on his table, he proceeds to call the order 
of the day, which consists of unfinished business, in 
regular order, and subjects particularly set apart for 
that day. 

§ 674. In carrying a bill through the House, there 
are certain steps which must be taken before the final 
decision is made ; and there are certain rules which 
must always be observed while a subject is under dis- 
cussion : — Thus, every bill must be read 3 three times 
previous to its passage ; and each reading must receive 
the formal sanction of the House. No bill can be twice 
read on the same day, without special leave of the 
House. 

§ 675. The first reading of a bill is for information, 
and if opposition be made to it, the question is put by the 
Speaker, " Shall this bill be rejected V ' If no opposition 
be made, or this question is rejected, the bill goes to its 
second reading without a question. On the second read- 
ing of the bill, it may be either engrossed or committed: 
if committed, the House determines whether it shall be 
a select committee, or a standing committee, or a com- 
mittee of the whole : if to a committee of the whole, 
the House determine on the day. If the bill be en- 
grossed, then the House appoint a day upon which it 
shall be read a third time : after the bill is read a third 
time, the question is upon its final passage. 

§ 676. When a bill shall pass, the Clerk must certify 



1 Jefferson's Manual, Rule 16, of the House. * Idem., 

Rule 17. 3 Idem. 

Y 






254 PRACTICAL OPERATION OF 

it, noting the day of its passage at the foot. There 
are various rules to be observed during the discussion, 
but we shall notice only those which have a direct effect 
in facilitating or retarding the business of the House. 

§ 677. The chief of these are the rules in respect to 
motions, by which the business before the House is fre- 
quently very much accelerated or retarded, even against 
the wishes of the majority. The principal motions, 
and the order of their precedence, is as follows ; the 
motion to adjourn, — to lie on the table, — for the previous 
question, — to postpone to a day certain, — to commit or 
amend, — to postpone indefinitely. The motion to ad- 
journ takes precedence of all other questions ; after 4 
P.M. it is always in order. The motion to lay on the 
table has next precedence ; this motion, if it succeeds, 
gives the subject the go-by, till it is formally recalled by 
a motion to take it up; this, unless the majority for 
the measure is strong, is difficult to be done. The 
previous question is a formidable motion in the hands of 
a majority ; it can only be called for by a majority, and 
precludes all debate. It is used by the majority to press 
a question when measures are taken by the minority to 
delay and protract the action of the House upon the sub- 
ject in hand ; or when the debate becomes vexatious, or 
improper. 

§ 678. Upon all questions where there is any oppo- 
sition made, the yeas and nays are taken ; that is, the 
members vote alphabetically, in the affirmative or nega- 
tive, upon the question before them. The yeas and nays 
may always be demanded by one-fifth of the members 
present. 

§ 679. The rules and usages observed by parlia- 
mentary bodies are all favourable to deliberate and pru- 
dent legislation, and to the just rights of the minority. 
If legislation could be hurried off as rapidly as ordinary 
business, the majority would do many acts their delib- 

1 Jefferson's Manual, Rule 29. 



THE NATIONAL CONSTITUTION. 255 

erate reason would disapprove, and be impelled to much 
oppression upon the minority. As it is, by means of 
rules and restrictions, the forms, if not the reality, of jus- 
tice and decorum are observed. 

§ 680. The rules for the Senate are nearly the same 
with those of the House : indeed, substantially, all par- 
liamentary bodies in this country observe the same 
rules. 

§ 681. After a bill has passed, it is carefully en- 
grossed by the Clerk, and sent to the other House by a 
proper person. When a bill has passed both Houses, it 
is duly enrolled on parchment, by the Clerk of the House 
of Representatives, or Secretary of the Senate, before 
it is presented to the President. After they are en- 
rolled, they are examined by a joint committee of the 
Senate and House of Representatives, who carefully 
compare the enrolment with the engrossed bills, and cor- 
recting any errors that may be discovered in the en- 
grossed bills, make their report forthwith to the Houses. 
After examination and report, each bill is signed in the 
respective houses, first by the Speaker of the House of 
Representatives, then by the President of the Senate, 
and after being thus signed, is presented by the commit- 
tee to the President of the United States for his appro- 
bation ; it being endorsed on the back of the enrolment 
in which House the same originated. No bill that has 
passed one House is sent to the other for concurrence 
within the three last clays of the session. 

§ 682. The signature of the President is affixed to 
all bills which meet his approbation, and this completes 
the last act of practical legislation. When bills are thus 
completed, they make a part of the laws of the nation, 
and from the day mentioned in the bill, take effect 
accordingly. 



256 PRACTICAL OPERATION OF 



3d. OF THE JUDICIARY. 



§ 683. By Art. 3d, Sect. 1st, of the Constitution, the 
Judicial power of the United States is vested in a Su- 
preme Court, and such inferior courts as Congress may 
appoint. By Sect. 8 of Art. 1, Congress have power 
to make all laws necessary and proper to carry these 
provisions into execution. Accordingly, in September, 
1789, Congress passed the Judiciary Act, which has 
since been frequently amended, organizing the Supreme 
and Inferior Courts, and prescribing their mode of action. 

§ 684. The courts established are, first, a Supreme 
Court, consisting of a chief-justice and seven as- 
sociates; 2d. A District Court, consisting of one judge 
for each district, of which there are many ; 3d. A Cir- 
cuit Court, consisting of one judge of the Supreme Court, 
and the district judge in connection. 

§ 685. Under other heads, we have seen what was 
the jurisdiction of these courts : we are here to learn in 
what mode they operate, and what functions they perform. 
These may be considered, 1st, as to the objects which 
courts effect ; 2dly, as to the means of effecting them ; 
and 3dly, as to the mode by which their decisions are 
carried into execution. 

^ 686. 1. As to the objects of Courts of Justice. 
The general object of all courts is to administer justice. 1 
It is to enforce right, and punish or repress wrong. 
Thus, for example, if James has a right to a field, which 
Paul has taken and keeps, James may appeal to the 
Court, and that will give judgment against Paul, and 
restore the field to James ; or if Paul being rightfully in 
possession of the field by a lease for cultivation, com- 
mits waste upon it by cutting timber trees, James may 
appeal to the court; and it will restrain Paul from cutting 
them ; or again, if Paul steals the goods of James, the 

1 3 Blackst. 24. 



: 



THE NATIONAL CONSTITUTION. 257 

court will punish Paul and restore the goods. Thus, as 
the general object of the Executive Department is to 
execute the laws, so that of the Judiciary is to pass judg- 
ments upon infringements of them, and carry these 
judgments into effect. 

§ 687. The objects of the United States Judiciary 
are, in conformity to the United States Laws, of the 
same general nature, but different in extent and relations 
from those of the states. These have, however, been 
defined chiefly under the jurisdiction of the United 
States Courts. The objects of the State Judiciaries are 
the enforcement of municipal rights of every description, 
and the punishment of state offences ; while the United 
States Judiciary concerns chiefly the enforcement of 
municipal rights only of a certain character, offences 
against the laws of the United States, and maritime 
law. 

§ 688. 2. But to enforce rights, and punish crimes, 
courts must have the means to bring the parties before 
them, and to ascertain the truth of the case. These 
means consist, 1st, of the officers of the court ; and 2dly, 
ofprocess. 

§ 689. 1st. The officers of the United States Courts 
consist of clerks, marshals, attorneys, and reporters. 
The duty of clerks is to keep, in books prepared for that 
purpose, an exact record gf each case which comes 
before the court, with all the proceedings which have 
taken place upon it at each successive stage. This 
record is kept carefully in the public offices, and is of 
such solemn import, that when a cause has once been 
decided, it cannot be impeached, but is conclusive against 
the parties to it, their heirs, and successors for ever. By 
Sect. 7th of the Judiciary Act, the Supreme Court and 
the District Courts have power to appoint their own 
clerks, and the clerk of the District Court is also clerk 
of the Circuit Court. 

§ 690. The Marshal is what is termed the ministerial 
Y2 



258 PRACTICAL OPERATION OP 

officer of the court, that is, he ministers or acts for the 
court in all its executive proceedings. Thus, if the 
court directs a person to be brought before them, the 
marshal sees it done by serving the order of the court 
upon him, and if he will not come voluntarily, compelling 
by force ; for which purpose he can call upon all 
bystanders, and others for assistance. 

§ 691. The general duty of the marshal 1 is toattend 
upon the District and Circuit Courts when sitting, and 
upon the Supreme Court in the district in which that 
court shall sit ; and to execute all lawful precepts 
directed to him, and issued under the authority of the 
United States. The marshal has power to appoint 
deputies, who are removable from office at the pleasure 
of the judges of the District and Circuit Courts. For 
the faithful performance of his duties he is bound, with 
securities, in a large sum. In all cases where the mar- 
shal or his deputy is a party, the writs or precepts are 
directed to some disinterested person, who has power 
to execute them. The marshal sometimes has other 
duties assigned him by law, — but his general and 
proper duty is that of executing the process of the 
court. 

§ 692. Attorneys at Law are persons supposed to be 
learned in the law, and as such, are appointed by the 
courts to practise law, an^ conduct suits within their 
jurisdiction. As they are appointed by the courts, they 
are removable at the pleasure of the courts. They are 
considered officers of the courts, and amenable to them. 
The requisites to license a person to practise law in 
the several states are enacted by statute : in the United 
States Courts, any one may practise who can practise in 
the courts of highest judicature in the state where he 
resides. 

§ 693. A Reporter is likewise an officer of the court. 

1 Judiciary Act, Sect. 37. 






THE NATIONAL CONSTITUTION. 259 

He is some one licensed by the court to report and 
publish their judicial decisions and opinions. Doubt- 
less, any one can report the proceedings of a court of 
justice ; but they would not have weight or authority 
unless done under the sanction and inspection of the 
courts. Reporters are now appointed, by nearly all the 
courts of highest jurisdiction in the several states. These 
reports are used as precedence and authorities upon which 
to decide similar cases. They are constantly cited at 
the bar, and make up the largest portion of a lawyer's 
library. A learned judge has said, that " the first and 
greatest lesson a judge lias to learn is to abide hy pre- 
cedents" The reports of decisions in the Supreme 
Court of the United States have acquired an immense 
authority, both from its being the tribunal of ultimate 
resort, and from the learning and ability of its judges. 

§ 694. Of Process. Process is the method taken 
by the law to compel a compliance with its demands : 
as such, it comprehends all the written orders of the 
courts, from the commencement of a suit till its termi- 
nation by execution of the judgment. 

§ 695. Process is of two kinds ; Mesne and Final. 
Mesne Process is all that process which is issued prior 
to the judgment, — such as writs to bring the parties 
before the courts, summon juries, witnesses, &c. Final 
Process is all that process necessary to carry the judg- 
ment of the court into execution, as the writ of capias 
ad satisfaciendum, to take the body for satisfaction, and 
the writ levari facias to levy on lands. The distinction 
between mesne and final process being made by the 
judgment : all before that being Mesne, and all after 
Final Process. 

§ 696. The terms writ and process are in the Ameri- 
can practice nearly confounded, but in England the 
writ means what is called the original, or the writ issued 

1 3 Blackstone's Comm. 269, 



260 PRACTICAL OPERATION OF 

to commence, or found an action at law. Here a writ 
is a mandatory letter from the court, directing parties and 
persons to be brought before it, and things to be done. 

§ 697. By the act of May, 1792, 1 all writs and pro- | 

cesses issuing from the Supreme or Circuit Court shall 
bear teste, that is, be signed and issued as of the chief 
justice ; and all writs and process issuing from the Dis- 
trict Court, shall bear teste of the judge of such court, 
which writs and process shall be under the seal of the 
court, and signed by the clerk thereof. 

§ 698. The forms of writs, and executions, except 
their style, and that of other process, in suits at Common 
Law, are the same as are used in the Supreme Court of 
each state respectively. What these forms and writs - I 
arewill be seen under the head of the Practical Operation 
of the State Judiciary, Book II. chap. II. 

§ 699. 3d. Of the mode in which the decisions of 
courts are carried into effect. Much of this has already 
been explained under the head of Process, but the 
executive part is yet to be explained. 

§ 700. The judgments of a court may have two gen- 
eral objects ; 1st, to punish for crimes and misdemea- 
nours ; or, 2dly, to obtain a debt. 

§ 701. 1st. The punishment of crimes may be either 
by imprisonment, or death. Both are executed under the 
order of the court, by the marshal, who confines the 
prisoners in the place assigned them, or executes them 
according to the sentence. In each county is erected a 
public jail, for the purpose of confining prisoners. 
Almost every state, also, has a Penitentiary, which is a 
general jail for the state. 

Contempts against the authority of the court are mis- 
demeanours, and are punishable at the discretion of the 
court, by fine and imprisonment. 

§ 702. 2d. A judgment, whose object is to obtain a 

1 1 Story's Laws of United States, 257. j 



THE NATIONAL CONSTITUTION. 261 

debt, may be carried into effect in three different modes. 

1. By a levy upon goods and chattels. This writ is 
directed to the proper officer, whether marshal or 
sheriff, and is immediately levied upon the goods and 
chattels of the defendant. These goods are then ad- 
vertised for sale, at a given day, and sold for the benefit 
of the plaintiff, who, after deducting costs, receives the 
proceeds to the amount of his debt, and if there is not 
enough, execution is issued against other property. 

2. Another writ is levied upon lands and tenements, 
which is executed in the same manner by the proper 
officer, and the lands are then appraised according to 
the laws of the state in which they lie, and sold at pub- 
lic auction. The process of the United States Courts 
is the same as that of the state in which the court is 
held. 3. Another writ is the capias ad satisfaciendum, 
which is levied upon the body. Under this writ, the 
marshal or sheriff takes the debtor to jail, and there con- 
fines him till the debt is paid, or he is relieved by the 
insolvent laws of the states. 

§ 703. These are the principal modes in which 
courts carry their decisions into effect. In the Court of 
Chancery or Equity, there are also some others peculiar 
to those courts. For example, a Court of Chancery, 
having ascertained that a conveyance ought to be made 
by one party to another, may decree that it be made, 
and give it the same effect as if it had been done. In 
general, however, the remedies above mentioned are the 
principal ones upon which reliance is placed in the 
punishment of wrongs, or the attainment of rights, 



BOOK II. 



CHAPTER II. 

PRACTICAL OPERATION OF THE STATE GOVERNMENTS. 

§ 704. To understand the difference between the 
operations of the State and United States Governments, 
we must remember that the latter has for its objects 
national concerns, — the former municipal ; the latter 
chiefly external, — the former wholly internal affairs. 
In this difference of objects consists the chief difference 
of operation. In the mode of operating, there is very 
little difference. State Governments, like the National, 
act through the great channels of Legislative, Executive, 
and Judicial functions. 

1 . The Legislative functions of State Governments. 

§ 705. We have already seen what powers are held 
by the state legislatures, in relation to the laws and 
institutions of the states. Here we must consider 
principally the mode of their action. The legislatures 
of the states are organized in the same manner, as the 
national legislature, and are governed by the same rules 
of precedence: indeed they are all derived from the rules 
of the British Parliament, except in cases where the pe- 



THE STATE GOVERNMENTS. 263 

culiar circumstances of our government render them in- 
admissible. 

§ 706. There is a Speaker, Clerk, Sergeant-at-Arms, 
and Doorkeeper, who have the same powers and duties 
as those of the national legislature. 

§ 707. In the same manner, the chief business of the 
legislatures is performed by the committees, who are 
likewise constituted in the same manner, being generally- 
appointed by the speaker ; in the legislatures of the 
states, there can, of course, be no committee of foreign 
affairs ; for the states have no foreign affairs to transact. 

§ 708. In some of the states, as in Pennsylvania, the 
governor has the same veto upon the passage of bills 
as is vested in the President of the United States ; and 
in others, as in Ohio, the majority of the legislature can 
pass a law without the governor's assent. In fact, in 
Ohio, bills are not even signed by the governor, but only 
by the Speaker of the House and the Speaker of the 
Senate. 

2. THE STATE JUDICIARY. 

§ 709. The operations of the State Judiciary vary but 
little from those of the National Courts. In respect to 
their officers, there is a slight difference. Instead of a 
Marshal, the ministerial officer of the state courts is 
the Sheriff of the county. 

The Sheriff is the ancient Common Law officer of 
the court. His office is a Saxon institution. He was 
originally the deputy of the earl who had the command 
of the county, and is now the chief officer of the coun- 
ty. 1 They were originally, in most cases, chosen by 
the people, and inmost of the states are still so chosen. 

§ 710. The Sheriff is first a conservator of the peace, 
and is bound to apprehend and commit to prison all 
persons who break, or attempt to break the peace. He 

1 1 Blackstone, 339. 



264 PRACTICAL OPERATION OF 

is also bound to apprehend persons who have committed 
crimes, and for these purposes he is vested with power 
to call to his assistance the posse comitatus, i. e. the 
power of the county. 2. He is the jailer of the county, 
and is bound to keep all prisoners in proper and safe 
custody, and to provide for them ; for which purpose 
he is allowed his expenses and fees. 

3. The Sheriff is the ministerial officer of all courts 
having jurisdiction within the county. He must serve 
all writs, make escorts, take bail, summon and return 
juries, and carry the judgment of the court into exe- 
cution. 

§ 711. To execute these duties the sheriff has under 
him various inferior officers, as deputies, jailers, &c. 

§ 712. In the counties of the different states, there is 
also another officer, whose duties are partly judicial and 
partly ministerial. This officer is the Coroner. His 
duty is, 1st, in case of all deaths, supposed to be by 
violence, to call a jury to inquire into the matter, sum- 
mon witnesses, and return the verdict into court. 2dly, 
In case of vacancy in the office of Sheriff, the Coroner 
performs his duty. 

§ 713. The states have also a large class of judicial 
officers, who are unknown to the Federal System, except 
in the District of Columbia. These are Justices of the 
Peace. These officers are hi every way important, and 
their duties constitute a large part of the judicial busi- 
ness of society. 

To give a view of these, we will select the office and 
duties of a Justice of the Peace in Ohio. Their juris- 
diction varies somewhat in the different states, but their 
general duties are the same. 

§ 714. In Ohio, the jurisdiction of justices, in civil 
cases, is limited, 

1. In territory, to the township wherein they are 
elected ; 



THE STATE GOVERNMENTS. 265 

2. In amount, to one hundred dollars ; 

3. But in confession of judgment, without process, to 
two hundred dollars. 

4. They have power to administer any oath required 
by law to be taken or administered ; 

5. They may issue process for witnesses in any 
cause or suit pending before them ; 

6. They have power to take acknowledgments of 
deeds, mortgages, and other instruments of writing. 

7. The three last classes of powers are co-extensive 
with the county. 

§ 715. The jurisdiction of Justices in criminal 
cases is, 

1. Co-extensive with the county wherein he was 
elected ; 

2. He is conservator of the peace therein ; 

3. He is authorized and required to cause every 
person, charged with the commission of a crime or 
breach of the law, to be brought before him for ex- 
amination. 

4. He is empowered, and it is his duty to inquire 
into the complaint, and cause every person so charged 
either to be committed to jail, discharged, or recognised 
to appear at the next term of court, according to the 
nature of the case. 

5. It is his duty to recognise all such witnesses as 
he may consider necessary to the further prosecution of 
the cause, to appear before the next term of court. 

6. He has power to fine, for several misdemeanours 
and criminal offences described by statute, and in such 
cases, after entering judgment, he may issue execution 
for the fine and costs. 

§ 716. The ministerial officer of the Justice's Court 
is the Constable. 

1. They have power to execute process of subpoena, 
in civil cases, throughout their respective counties ; 
Z 



266 PRACTICAL OPERATION OF 

2. They must moreover execute such other legal pro- 
cess, in civil cases, as may be directed to them. 

3. It is their duty to apprehend and bring to justice 
felons and disturbers of the peace, to suppress riots, 
and keep and preserve the peace within their respective 
counties. 

4. And if any person charged with the commission 
of any crime or offence shall flee from justice, it shall 
be lawful for any constable of the county where such 
crime is committed, and it is his duty, to pursue and 
arrest such fugitive in any other county of the state. 

§ 717. In addition to the powers of Justices of the 
Peace above enumerated, they have the same jurisdic- 
tion in cases concerning real estate as in personal, 
where the damages do not exceed one hundred dollars, 
and the title to real estate is not called in question. 
They have also power to enforce obedience to their 
process by attachment, &c. 

§ 718. From this statement it will be evident, that 
a large mass of business must be transacted by Justices 
of the Peace. Most of the debts to be collected are 
below one hundred dollars, and therefore fall within a 
justice's jurisdiction. Almost all the criminal cases 
first pass under examination before the justices, so that 
in every respect their functions are important : in Ohio, 
and the majority of the states, they are elected by the 
people of their respective townships ; in Connecticut 
and others, by the legislature. 

§ 719. Besides the officers and courts above enume- 
rated, the states have several gradations of municipal 
courts, which do not exist under the government of the 
United States, — but whose general operations are car- 
ried on in the same manner. Thus, in cities, there is 
generally a court composed of the Mayor and Alder- 
men, for the trial of offences against the city ordinances ; 
again, there is generally also a Court of Quarter Ses- 
sions (in New- York, composed of the Recorder and 



THE STATE GOVERNMENTS. 267 

part of the Aldermen), for the trial of criminal offences : 
then there are the usual county courts, &c. In this 
manner any number of courts may be organized, to 
suit the convenience of the people ; their decisions, 
however, are all subject to review by an ultimate tribu- 
nal. Under the laws of the United States, we have 
seen there are but three orders of courts, — the Su- 
preme, Circuit, and District Courts. But these may 
constitutionally be increased at the discretion of Con- 
gress. 

3. THE EXECUTIVE. ' 

§ 720. The duties of the Governors of the several 
states is, in general, analogous to those of the President 
of the United States, in those respects in which the 
powers of the several state governments are similar to 
those of the union. 

1. The governor has the power to command the 
militia of the state, when not called into actual service 
by the United States ; also, he has the power of com- 
manding the army and navy, if there be one. A state 
cannot maintain them in time of peace, and in time of 
war they have not, except so far as consists in the sup- 
port of volunteers and drafted men. 

2. They can require written opinions and statements 
from the heads of departments. 

3. It is their duty to communicate such information 
as they may think necessary on the state of public 
affairs. 

4. It is their duty to see the laws faithfully executed. 

5. In some of the states, as Pennsylvania, they hold 
the appointing power almost exclusively. In others, as 
in New- York, they hold it in conjunction with the Sen- 
ate. And in others again, as Ohio, they have none 
of it. 

§ 721. 6. The departments of executive officers under 
the state governments are also organized in analogy to 



268 THE STATE GOVERNMENTS. 

those of the general government, so far as they go. The 
departments of War, Navy, Post-office, and Mint, do not 
^xist under the state governments, because the states 
have no power over the subjects in relation to which 
those departments are erected. The states have a De- 
partment of State, the chief object of which is the pre- 
servation of the laws and public records, and the issu- 
ing of commissions. There is also a Treasurer, or 
Comptroller, whose business is the receipt, distribution, 
or safe keeping of the public funds. 

§ 722. From this statement we see, that as national 
governments, the states have very little to do. All 
powers of a general nature are vested in the general 
government. 

Our work is now ended. If the student of Political 
Law can find in it little ingenuity and less novelty, he 
will remember that these are not the characteristics of 
truth and learning in Constitutions and Jurisprudence : 
let him seek, rather, for what he may perchance find, the 
accuracy of the legal historian, and a correct delinea- 
tion of our political institutions. From the study of 
these he must ever go forth increased in knowledge, in 
love of liberty, and the ardour of patriotism. 



INDEX. 



SICT. 

Accounts . . 238 

Adjournment, neither House can adjourn without the other's 
consent 89, 90 



Adjutant-general 
Ambassador, what 
Alien ..... 

Arms, right of the people to bear 
Association of 1774 



628 

548 

147-149, 153 

427 

9 



B 

Bill of Attainder . 234, 249 

Bills of Credit 245-248 

for raising revenue, where must originate , 102-104 

Bail, excessive, ........ 431 

Bounty Land-office . 626 



Capitation Tax .... 

Census ..... 

Charter Governments 

Charge d' Affaires 

Citizens of each state, privileges of 

Citizenship 

Colonies, forms of government in 

Coining money, right of 

Compacts, or agreements with another 

eign state, forbidden 
Congress of 1754 
1765 
1775 

how composed 

time of assembling 



235 
47 
3 
550 
399 
343-346 
2 
244 
state, or with a for- 

272, 282 

7 

8 

10 

35-37 

74,75 



270 



INDEX. 



Congress, power of to lay and collect taxes, imposts, and 

excises 111-118 

power of to borrow money . . . 120 

power of to regulate commerce . . 121-142 

power of to regulate intercourse with the Indian 

tribes 143-145 

power of to establish rules of naturalization 146-153 
power of to pass bankrupt laws . .154,155 
power of to coin money . . . . 156, 157 
power of to fix the standard of weights and mea- 
sures 156 

power of to provide for the punishment of coun- 
terfeiting 158 

power of to establish post-offices and post-roads 159-162 
power of to make internal improvements . 162-179 
power of to promote the progress of science and 

the useful arts ...:.. 180 

power of to constitute tribunals inferior to the Su- 
preme Court . . . . . 184, 185 
power of to punish piracy .... 1S4-187 
power of to declare war, and grant letters of 

marque 190-192 

power of to make rules concerning captures 190, 193 
power of to raise and support armies . . 194, 195 
power of to provide for a navy . . . 196 

power of to provide for calling forth the militia 199-207 
power of to exercise exclusive jurisdiction . 208, 209 
power of to make all laws necessary and proper to 



carry those powers into execution 


210-212, 214 


Confederation, articles of 


11,22-25 


Convention of 1787 ...... 


14 


Contempts ....... 


83-86 


Copyrights ....... 


. 181,183 


Constitution of the United States, page 155. 




preamble of .... 


28-32 


construction of - 


. 458-462 


proceeds from the people . 


515 


acts upon individual states 


516 


how put into operation 


. 537, 538 


Contracts, the obligation of 250 


-253, 255-270 


Corruption of blood 


394 


Citizens of each state, privileges of 


399 


Constitutions of the states, how they agree 


. 496,497 


how they differ 


. 498-606 


Commissions, authenticity of ... . 


575 
716 
414 


Constables ....... 

Debts under the Confederation . 



INDEX. 271 



D 



■ ECT. 

Declaration of Rights 464 

Democracy of the United States — Representative 511 

Disorderly behaviour, power to punish . . 79,81,83 

E. 

Elections for Senators and Representatives, time, places, 

and manner of holding . . . . 72, 73 
Election returns, and qualifications of members of Con- 
gress ' 76, 78 

Engineer Department ' 629 

Executive of the United States, who .... 286 

his powers , 542-544 

Ex post facto law 234 

Expulsion of members of Congress, what for 82 



Fugitives from justice 399-401 

Foreign intercourse ....... 456 

G. 

Government of the United States, is a Republic . 5C8 

is a Federative Republic 509 
is a Democratic Federa- 
tive Republic 510 
foundation of it is the 

consent of the people 512 
is^a government of ma- 
jorities . 528-530 
is perpetual . 531-534 

H. 

House of Representatives, how composed ... 37 

power of impeachment . 50-53 

Habeas Corpus, writ of .... 230-233 

I. 

Impeachment, judgment upon .... 70 

Importation of slaves 228, 229 

Imposts and duties, states forbidden to lay without consent 
of Congress . . . .... 272,275,277 



272 



INDEX. 



Importation laws 
Indian Bureau . 
Indian Relations 



8RCT. 

272, 273 

612,613 

614-616, 621-623, 625-629, 631 



Journal of proceedings in Congress .... 87 

Judiciary of the United States, how constituted . . 329 

how organized . . 683, 684 

its object . . . 686, 687 

Judiciary, National, its means of enforcing right . 688 

its officers 689-693 

its process 694-698 

its mode of executing judgment . 699-703 
Judiciary, Supreme Court ...... 325 

Inferior Courts, what ..... 326 

Circuit Courts, how organized . . . 326 

District Courts, how organized . . . 327 

Compensation of judges .... 324, 328 

Judicial power, how far it extends . 329-347, 352-371, 382 

Judicial functions 382 

Jurisdiction, Common Law . . . . 370 

Admiralty and Maritime 371-381 

Justice of the Peace 713-715 



Land Office . 
Lands, how granted . 

mode of survey 

survey and disposition of 

titles of . 
Laws, preservation of 
League of 1643 
Letters of Marque 



594 
595 
596, 597 
598-601 
602, 603 
568-570 
6, 17-19 
243 



M. 

Moneys, how drawn from the Treasury 
Mint 



237 

662-664 



N 



N*vy, commissioners of 
department of . 



638 
637 



INDEX. 



273 



Order, resolution, and vote of Congress must be signed by 

the President 109,110 

Oath to support the Constitution .... 418-420 
Ordnance Department „ .. . 631 



Proprietary Governments 4 

Patent Rights : 181, 182 

Priority of Payment 222-224 

Presents . 239, 240 

President . . . 286,287 

mode of electing .... 286-292, 293, 296 

qualifications of 298, 299 

who shall fill his place in case of removal . 300 

vacancy in the office of ... 301 

compensation of 302 

oath of 303 

power of to pardon ..... 304, 306 

power of to command the army and navy . 304, 305 

power of to make treaties .... 307-309 
power of appointment . . 307, 310-316 

to give information to Congress . 317,318 

to convene Congress 317, 319 

to execute the laws ..... 320 

to receive ambassadors . . . . 317, 321 

may be impeached . 323 

Pay Department 334 

Pension 611 

Petition, the right of the people to . . . 424, 426 

People of the United States one nation . 525-527 

Plan of 1754 - . .20,21 

Patent Laws and Copyrights ..... 572-579 

Private property, how taken 390 

Press, its freedom ... ... 425 

Post-office Department ...... 640 

Postmaster-general ....... 641 

Powers not delegated ....... 433 

Public acts, records, and judicial proceedings 396-398 

Purchasing Department 633 

Public ministers, who they are 547 

credentials of . . . . 560 

privileges 563,564 



Quorum 



77 



274 



INDEX. 



R. 

Ratifications 

Ratification of the Constitution 

Religion, Congress can make no law respecting . 

Religious test 

Republican form of government guarantied 

Requisition Bureau 

Royal governments 

Rights, enumeration of does not disparage 

Representatives to Congress, who shall be electors of 
qualifications of 
apportionment of . 
mode of electing . 

Rules of proceeding, each House determines 



MSCiT. 

422 

435-458 

425 

42 L 

463 

610 

5 

433 

37, 38 

39-41 

42,43,46 

45 

79, 80 



1 

54, 55 

56 

57,58 

57,59 

62-66 



Settlement of America 

Senate of the United States, how composed 
how chosen . 
^how divided . 
vacancies 
President of . 
power to try impeachments 67-69,7 1 

Senators, qualifications of 60,61 

Senators and Representatives, compensation of . 91, 92 

privileges of . . 91,93-98 

shall not be appointed to 

office . . . 99-101 

States, restrictions on . . . 241,242,272,281-285 



Soldiery shall not be quartered in houses 


428 


Searches and seizures shall not be, except 


429 


State constitutions, when adopted 


465 


legislation, its object and extent 


486-493, 495-497 


constitutions, how they agree 


. 496,497 


how they differ . 


. 498-506 


department of .... 


. 545,546 


Secretary of legation . . 


552 


Sheriff 


. 711-713 


State governments, operations of 


704 


legislative functions of 


. 705, 706 


judiciary of 


709, 712, 714 


executive of 


• 720-721 


Subsistence department . . . 


635 


Surgeon-general .... 


636 






1 



INDEX. 



275 



Tax on exportation .... 




SEC?, 

236 


Territory, power to acquire 








226 


Titles of nobility not grantable 






.' 239, 


240, 271 


Tonnage duties 








278 


Topographical Bureau 








630 


Treason .... 






'. 392 


393, 395 


Treasury, Department of . 








581, 582 


Secretary of 








583 


1st Comptroller of 








584 


2d " 








585 


1st Auditor of . 








586 


2d 








587 


3d 








588 


4th « 








589 


5th « 








590 


Treasurer of the United States 


. 


591 


Register of " " 




592 


Solicitor of 




593 


Trial by jury . . 


' 385, 


396, 397 


U. 






United States Bank .... 


. 


214-221 


Virginia, recommendation of a Convention 




13 


Vacancies in representation 




48,49 


W. 






Washington, letter of, to the states . 




11,12 


War, Department of 




608 


War-office ...... 


. 


609 


Y. 






Yeas and Nays 








87,88 



LIBRARY OF CONGRESS 



022 021 612 3 






